Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement and each Guaranty; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note; (iii) the Security Agreement, duly executed by each Loan Party thereto, together with: (A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, (iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken; (v) such certificates of resolutions, manager consent or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization; (vii) an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent; (viii) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents; (ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower; (x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named; (xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and (xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension. (b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash. (c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing. (d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18. (e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers. (f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes. (g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material. (h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 2 contracts
Sources: Credit Agreement (Refco Inc.), Credit Agreement (Refco Information Services, LLC)
Conditions of Initial Credit Extension. The obligation of the L/C Issuers and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note executed by evidence that the Borrower Collateral Documents shall be effective to create in favor of each Lender requesting the Administrative Agent, for the benefit of the Secured Parties, a Note;
(iii) legal, valid and enforceable first security interest and Lien upon the Security AgreementCollateral, duly executed by each Loan Party theretoincluding, together withwithout limitation:
(A) searches of UCC filings in the jurisdiction of organization or formation of each Loan Party, in each jurisdiction where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, and in each other jurisdiction requested by the Administrative Agent,
(B) financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted hereunder,
(C) proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of each jurisdiction that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby;
(D) certificates and instruments representing the Pledged Equity Securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(BE) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,[Reserved]; and
(CF) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements;
(viii) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viiv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(viiv) an a favorable opinion of Weil, Gotshal & G▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiivi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of this Agreement and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no changeevent or circumstance since December 31, effect, event, occurrence or state of facts since February 29, 2004, 2016 that has had or could would be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(1viii) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents[reserved];
(ix) a certificate attesting to the Solvency of the Loan Parties Borrower (taken on a consolidated basis with its Restricted Subsidiaries) as a whole) after giving effect to of the Transaction, Closing Date from the its chief financial officer officer, substantially in the form of the BorrowerExhibit N;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insuredeffect, as appropriate, under each insurance policy together with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so namedcertificates of insurance;
(xi) certified copies [reserved];
(xii) evidence that the principal of the Purchase Agreement and interest on, and all material agreementsother amounts owing in respect of, instruments the Indebtedness (except for Existing Letters of Credit which shall continue hereunder) under the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and other documents delivered in connection therewith as all Liens securing obligations under the Administrative Agent shall reasonably requestExisting Credit Agreement have been, or concurrently with the Closing Date are being, released; and
(xiixiii) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicablethe L/C Issuers, relating to the initial Credit ExtensionSwing Line Lender or any Lender reasonably may require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Administrative Agent and Lenders shall have received evidence reasonably satisfactory all documentation and other information requested by the Administrative Agent and Lenders in order to them that the Company shall comply with requirements of regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 6.18.
(e) The Arrangers 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (TopBuild Corp), Credit Agreement (TopBuild Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent, other than those matters specified in the Post-Closing Letter referenced in Section 7.17:
(a) The Administrative Agent's receipt Agent shall have received executed counterparts of (i) this Agreement, (ii) the followingPledge and Security Agreement, (iii) the Intellectual Property Security Agreements and (iv) if requested by any Lender pursuant to Section 2.11, a Note or Notes, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each the foregoing properly executed by a Responsible Officer of the signing Loan Party (as applicable)and, each in form and substance reasonably satisfactory the case of this Agreement, sufficient in number for distribution to the Administrative Agent Agent, each Lender and its legal counsel:the Borrower.
(ib) executed counterparts The Collateral Agent shall have received Uniform Commercial Code financing statements in the state of this Agreement and each Guaranty;
(ii) a Note executed by the Borrower in favor incorporation or formation of each Lender requesting a Note;
(iii) Loan Party in order to perfect and protect the first priority liens and security interests created under the Pledge and Security Agreement, duly executed by each Loan Party thereto, together with:
(A) certificates representing the Pledged Equity Shares referred to therein in the Pledge and Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of evidence that all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions other actions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens liens and security interests created under the Pledge and Security Agreement, covering Agreement and the Collateral described in the Intellectual Property Security Agreement,Agreements has been taken.
(Cc) evidence that all other actionsThe Administrative Agent shall have received a duly executed Perfection Certificate dated on or prior to the Closing Date, recordings the results of a recent Lien and filings of or judgment search in each relevant jurisdiction with respect to Holdings, the Security Agreement Borrower and those of the Subsidiaries that shall be Subsidiary Guarantors or shall otherwise have assets that are included in the Administrative Agent may deem reasonably necessary in order Collateral, which such search shall reveal no Liens on any of the assets of Holdings, the Borrower or any of such Subsidiaries except for Liens expressly permitted by Section 8.01 and except for Liens to perfect and protect be discharged on or prior to the Liens created thereby shall have been taken, completed or otherwise provided for in a manner Closing Date pursuant to documentation reasonably satisfactory to the Administrative Collateral Agent,.
(d) The Collateral Agent shall have received:
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to Collateral Agent;
(ii) in the case of each material Leasehold Property that is a Mortgaged Property, use commercially reasonable efforts to obtain (A) if required by the terms of the related lease, a Landlord Consent and Estoppel and (B) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iii) with respect to each Mortgage, except as may be agreed to by Collateral Agent, in its reasonable discretion, a mortgagee’s policy of title insurance (or marked up unconditional signed title insurance commitment or pro forma for such insurance having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount equal to not less than 110% of the fair market value of such Mortgaged Property and fixtures, which fair market value is set forth on Schedule 1.01(c), which policy (or marked up unconditional signed title insurance commitment or pro forma for such insurance having the effect of a policy of title insurance) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) name the Collateral Agent and each of the other Secured Parties as insureds thereunder, (D) be in the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies) where available, (E) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (F) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the Collateral Agent) and affirmative coverage as shall be reasonably requested by the Collateral Agent (including, but not limited to, endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit/future advance, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot and so-called comprehensive coverage over covenants and restrictions), and (G) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) the Intellectual Property Security AgreementSurveys with respect to each Mortgaged Property, duly executed other than as agreed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takenAgent;
(v) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state in which a Mortgaged Property is located with respect to the enforceability of the form(s) of Mortgages to be recorded in such state and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(vi) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property.
(e) The Administrative Agent shall have received such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party party or is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionparty.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 2 contracts
Sources: Credit Agreement (MacDermid Group Inc.), Credit Agreement (MacDermid Group Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Domestic Borrower;
(ii) a Note executed by each of the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) the Security AgreementCollateral Documents, duly executed by each Loan Party theretoParty, to the extent applicable, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank (to the extent available in any non-U.S. jurisdiction) and the Administrative Agent shall have received satisfactory evidence that the Liens in favor of the Administrative Agent on the equity interests of the Foreign Loan Parties required to be pledged have been validly created, are enforceable and have been perfected under the laws of each applicable jurisdiction,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable (or the foreign equivalent thereof) in order to perfect and protect the Liens created under the Security AgreementCollateral Documents, covering the Collateral described in the Security AgreementCollateral Documents as well as UCC, Lien and Intellectual Property, charge, and other searches (to the extent available in any non-U.S. jurisdiction) and other evidence satisfactory to the Administrative Agent that such Liens are the only Liens upon the Collateral, except Liens permitted hereunder,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentthereby,
(ivE) the Intellectual Property Security Agreement, Account Control Agreements and Securities Account Control Agreements (if any) in each case as referred to in the Collateral Agreement and duly executed by each Loan Party thereto, together with the appropriate parties,
(F) evidence that all other action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement Collateral Documents has been takentaken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of WeilSheppard, Gotshal Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇, LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, as to matters concerning the Loan Parties and each the Loan Documents as the Required Lenders may reasonably request;
(vii) a favorable opinion of NautaDutilh New York P.C., local counsel to the Loan Parties in form and substance reasonably satisfactory the Netherlands, addressed to the Administrative AgentAgent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of ▇▇▇▇▇ & Overy LLP, local counsel to the Loan Parties in the United Kingdom, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of the Domestic Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Domestic Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) no action, suit, investigation, litigation or proceeding pending or, to the knowledge of either Borrower, threatened in any court or before any arbitrator or governmental instrumentality that in the Administrative Agent’s or Arranger’s judgment could reasonably be expected to (1) have a material adverse effect on Material Adverse Effect;
(xii) annual audited financial statements of the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings Domestic Borrower and its Subsidiaries (including on a consolidated basis for the Target fiscal years ended 2009, 2010 and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents2011;
(ixxiii) interim financial statements of the Domestic Borrower and its Subsidiaries on a certificate consolidated basis described in Section 5.05(b);
(xiv) pro forma financial statements for the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal period ending on September 30, 2012, including forecasts prepared by management of the Domestic Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Domestic Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(xv) certificates attesting to the Solvency of the Loan Parties (taken as a whole) each Borrower and their respective Subsidiaries before and after giving effect to the Transactionfinancing under this Agreement and the transactions contemplated hereby, from the chief financial officer of the each Borrower;
(xxvi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; including, without limitation, for each parcel of Material Real Property Collateral, (i) standard flood hazard determination forms and (ii) if any property is located in a special flood hazard area (A) notices to (and confirmations of receipt by) such Loan Party as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (B) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent;
(xvii) the documentation and other information as to each Loan Party as requested by the Administrative Agent has been named as loss payee or additional insured, as appropriate, under and each insurance policy Lender in order to comply with respect to casualty and liability insurance as to which requirements of the Administrative Agent shall have requested to be so namedPATRIOT Act;
(xixviii) certified copies of evidence that the Purchase Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all material agreements, instruments and other documents delivered in connection therewith as Liens securing obligations under the Administrative Agent shall reasonably requestExisting Credit Agreement have been or concurrently with the Closing Date are being released; and
(xiixix) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicablethe L/C Issuer, relating to the initial Credit ExtensionSwing Line Lender or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) the Domestic Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Domestic Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Lenders shall have received evidence reasonably satisfactory to them that completed a due diligence investigation of the Company shall comply Borrowers, their respective Subsidiaries in scope, and with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each caseresults, satisfactory to the Arrangers)Lenders, and after giving effect shall have been given such access to the Transactionmanagement, the corporate records, books of account, contracts and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests properties of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower Borrowers and their respective Subsidiaries and shall have received at least $600,000,000 in gross cash proceeds from the issuance such financial, business and sale other information regarding each of the Senior Subordinated Notes.
(g) The Arrangers foregoing Persons and the Lenders businesses as they shall have received: (i) audited consolidated financial statements requested; Without limiting the generality of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management provisions of the Borrowerlast paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Diodes Inc /Del/), Credit Agreement (Diodes Inc /Del/)
Conditions of Initial Credit Extension. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselthe Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the Pledge and Security Agreement, duly executed by each the Loan Party theretoParties, together with:
(A) certificates representing the Pledged Equity referred Interests of any Domestic Subsidiary pledged pursuant to therein the Pledge and Security Agreement (to the extent such Equity Interests are certificated) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(C) lien search results, dated as of a recent date prior to the initial Credit Extensions, together with copies of all effective Uniform Commercial Code financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, and
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,thereby;
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of Weil▇▇▇▇▇▇, Gotshal ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) financial projections and forecasts prepared by management of the Borrower and reasonably satisfactory to the Administrative Agent, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the five year term of the Facilities;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixx) a certificate attesting to the Solvency duly completed Compliance Certificate as of the Loan Parties last day of the fiscal quarter of Equinix ended on September 30, 2014 (taken as provided that the calculation of the Consolidated Net Lease Adjusted Leverage Ratio shall be on a whole) pro forma basis after giving effect to (A) the TransactionIndebtedness incurred (x) hereunder and the use of proceeds thereof on the Closing Date and (y) pursuant to the 5.375% Senior Notes Due 2022 and the 5.750% Senior Notes Due 2025 and (B) the redemption of the 7.00% Senior Notes Due 2021), from the chief financial officer signed by a Responsible Officer of the Borrower;
(xxi) pay-off statements and/or lien release authorizations from (A) the Existing Administrative Agent with respect to interest, fees and expenses under the Existing Credit Agreement and other Existing Loan Documents, and (B) such other secured parties of record shown on any of the financing statements referred to in subclause (iii)(C) above, to the extent such financing statements disclose Liens on the Collateral;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requesteffect; and
(xiixiii) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicable, relating to the initial Credit ExtensionL/C Issuer or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid to the Administrative Agent, the Left Lead Arranger or the Lenders on or before the Closing Date shall have been paid paid, including, without limitation, any fees to Lenders as shall have been separately agreed upon in full writing in cashthe amounts so specified.
(c) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that occurred on or before December 29, 2014. Without limiting the Company shall comply with generality of the provisions of the penultimate paragraph of Section 6.18.
(e) The Arrangers 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Equinix Inc), Credit Agreement (Equinix Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, telecopies or facsimiles images in “portable document format” delivered by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and, to the extent not previously delivered, the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Company;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a NoteNotes;
(iii) a security agreement, in substantially the form of Exhibit J (together with each other security agreement or security agreement supplement delivered pursuant to Section 6.13, in each case as amended, the “Security Agreement”), duly executed by the Company and each Loan Party required to be signatory thereto, together with:
(1) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any material portion of the Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (2) tax lien, judgment and bankruptcy searches,
(B) searches of record ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as reasonably requested by the Administrative Agent in order to perfect, to the extent permitted by applicable Laws, the Administrative Agent’s security interest in the Intellectual Property,
(C) proper UCC-1 financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may reasonably deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(D) such consents and waivers from the landlords of such real property to the extent required to be delivered in connection with Section 6.14,
(E) to the extent required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Collateral Documents, all instruments (other than instruments evidencing intercompany Indebtedness), documents and chattel paper in the possession of any of the Loan Parties,
(F) intellectual property security agreements duly executed by the Company and each Loan Party required to be signatory thereto,
(G) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created thereby, and
(H) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken;
(iv) to the extent not previously delivered, a pledge agreement, in substantially the form of Exhibit K (together with each other pledge agreement supplement delivered pursuant to Section 6.13, in each case as amended, the “U.S. Pledge Agreement”), duly executed by the Company and each Loan Party required to be signatory thereto, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper UCC-1 financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in UCC of all jurisdictions that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security U.S. Pledge Agreement, covering the Collateral described in the Security U.S. Pledge Agreement,
(C) a listing of the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security U.S. Pledge Agreement that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenthereby, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,and
(ivE) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all other action that the Administrative Agent in its reasonable judgment may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security U.S. Pledge Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇ Dechert LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect; or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1C) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies calculation of the Lenders under Consolidated Leverage Ratio as of the Loan Documents;
(ix) a certificate attesting last day of the fiscal quarter of the Company most recently ended prior to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the BorrowerClosing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments such documentation and other documents delivered in connection therewith information as the Administrative Agent shall may reasonably requestrequest that is required in connection with this Agreement by regulatory authorities under applicable “Know Your Customer” and anti-money laundering rules and regulations, including, without limitation, OFAC and the PATRIOT Act; and
(xii) a Committed Loan Notice such other assurances, certificates, documents or Letter of Credit Applicationconsents as the Administrative Agent, as applicablethe L/C Issuer, relating to the initial Credit ExtensionSwing Line Lender or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) (i) All material consents and approvals necessary in connection with Unless waived by the Loan Documents and Administrative Agent, the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) Company shall have been obtainedpaid all fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods disbursements of counsel (including, without limitationto the extent reasonably required, foreign and local counsel) to the expiration Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or termination on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the requisite waiting period under closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, Company and the approval or consent Administrative Agent). Without limiting the generality of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselthe Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the Pledge and Security Agreement, duly executed by each the Loan Party theretoParties, together with:
(A) certificates representing the Pledged Equity referred Interests of any Domestic Subsidiary pledged pursuant to therein the Pledge and Security Agreement (to the extent such Equity Interests are certificated) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(C) lien search results, dated as of a recent date prior to the initial Credit Extensions, together with copies of all effective Uniform Commercial Code financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, and
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,thereby;
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of Weil▇▇▇▇▇▇, Gotshal ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) financial projections and forecasts prepared by management of the Borrower and reasonably satisfactory to the Administrative Agent, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the five year term of the Facilities;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixx) a certificate attesting to the Solvency duly completed Compliance Certificate as of the Loan Parties last day of the fiscal quarter of Equinix ended on September 30, 2014 (taken as provided that the calculation of the Consolidated Net Lease Adjusted Leverage Ratio shall be on a whole) pro forma basis after giving effect to (A) the TransactionIndebtedness incurred (x) hereunder and the use of proceeds thereof on the Closing Date and (y) pursuant to the 5.375% Senior Notes Due 2022 and the 5.750% Senior Notes Due 2025 and (B) the redemption of the 7.00% Senior Notes Due 2021)), from the chief financial officer signed by a Responsible Officer of the Borrower;
(xxi) pay-off statements and/or lien release authorizations from (A) the Existing Administrative Agent with respect to interest, fees and expenses under the Existing Credit Agreement and other Existing Loan Documents, and (B) such other secured parties of record shown on any of the financing statements referred to in subclause (iii)(C) above, to the extent such financing statements disclose Liens on the Collateral;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requesteffect; and
(xiixiii) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicable, relating to the initial Credit ExtensionL/C Issuer or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid to the Administrative Agent, the Left Lead Arranger or the Lenders on or before the Closing Date shall have been paid paid, including, without limitation, any fees to Lenders as shall have been separately agreed upon in full writing in cashthe amounts so specified.
(c) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that occurred on or before December 29, 2014. Without limiting the Company shall comply with generality of the provisions of the last paragraph of Section 6.18.
(e) The Arrangers 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Equinix Inc)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent, in addition to each of the conditions set forth in Section 4.02, on or prior to April 25, 2014:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies of originals (followed promptly as soon as reasonably practicable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each GuarantyAgreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit E (the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock or other transfer powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order required to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed results of a search of the UCC filings made with respect to the Persons in the jurisdictions contemplated by the Collateral Questionnaire, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party as debtor disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements are permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order required to perfect and protect (subject to Section 4.7(b) of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that in the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect case of IP Rights) the Liens created under the Intellectual Property Security Agreement has been taken(including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) (A) a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (I) that attached thereto is a true and complete copy of each Organization Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state or jurisdiction of its organization, and a certificate as to the good standing of each Loan Party and each Company Group Party as of a recent date, from such Secretary of State, (II) that attached thereto is a true and complete copy of resolutions duly authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, (III) as to the incumbency and specimen signature of each officer executing any Loan Document and (B) a certificate of another Responsible Officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (A) above;
(v) such certificates of resolutions, manager consent or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) an favorable opinion of Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Revolving Credit lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixvii) a certificate the Closing Date Projections;
(viii) certificates attesting to the Solvency of the Loan Parties (Parties, taken as a whole) whole after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestHoldings; and
(xiiix) a Committed completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Notice or Letter of Credit ApplicationParty, as applicable, relating to the initial Credit Extensiontogether with all attachments contemplated thereby.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date, including pursuant to the Engagement Letter and the Fee Letter, shall have been paid.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) The Borrower shall have been obtainedpaid all reasonable and documented fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination disbursements of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition counsel to the consummation of Administrative Agent directly to such counsel to the Transaction) in connection with extent invoiced within two Business Days prior to the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingClosing Date.
(d) The Arrangers At least three (3) Business Days prior to the Closing Date, the Lenders shall have received evidence reasonably satisfactory all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to them Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”) that has been requested at least ten (10) days prior to the Company shall comply with the provisions of Section 6.18Closing Date.
(e) The Administrative Agent and the Arrangers shall be reasonably satisfied with have received from Parent the Purchase Documentation Audited Financial Statements referred to in Section 5.05(a) and the unaudited financial statements referred to in Section 5.05(b) (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent audited financial statements filed on Form 10-K with the Purchase Agreement is, in each case, satisfactory to SEC shall satisfy the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is condition set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangersthis clause (e)).
(f) Evidence No event, circumstance or change shall have occurred since the date of the Audited Financial Statements that has resulted, or could reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect or a material adverse change in, or material adverse effect upon, the operations, business, properties, liabilities or financial condition of the Project Companies taken as a whole. Without limiting the generality of the provisions of clause (f) of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (NRG Yield, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement, duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,Agent (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(vii) an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the matters set forth in Exhibit J-1, and as to such other matters concerning the Loan Parties and the Loan Documents as the Administrative AgentAgent shall reasonably request;
(viii) opinions of local counsel for the Loan Parties, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J-2, and as to such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent shall reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no changeevent or circumstance since December 31, effect, event, occurrence or state of facts since February 29, 20042002, that has had or could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(1x) have a material adverse effect on certificate of the business, operations, assets, liabilities (actual or contingent), results Responsible Officer of operations or condition (financial or otherwise), each of Holdings and the Borrower certifying that (A) the "Consolidated EBITDA" as defined in, and calculated in accordance with, the Existing Credit Agreement after giving Pro Forma Effect to the Dairy Disposition of the Borrower and its Subsidiaries for the twelve-month period ended September 30, 2003 was not less than $141,800,000, (including B) the Target ratio of Consolidated Funded Indebtedness of the Borrower and its Subsidiaries)Subsidiaries at the Closing Date to the "Consolidated EBITDA" as defined in, taken as a wholeand calculated in accordance with, or (2) adversely affect the rights and remedies Existing Credit Agreement after giving Pro Forma Effect to the Dairy Disposition of the Lenders under Borrower and its Subsidiaries for the Loan Documentstwelve-month period ended on the last day of the fiscal quarter ended September 30, 2003, was not greater than 5.65:1, and (C) the pro forma financial statements delivered pursuant to Section 5.05(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions are fair in light of the then existing conditions;
(ixxi) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer Chief Financial Officer of the Borrower;
(xxii) the financial statements described in Sections 5.05(a), (b) and (d);
(xiii) a certified copy of the Sponsor Management Agreement;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so namedeffect;
(xixv) certified copies of the Purchase Agreement and Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and;
(xiixvi) (A) copies of certificates of merger or other confirmation reasonably satisfactory to the Lenders to be filed with the Secretary of State of the State of Delaware for each Merger, (B) confirmation from the Target Company and the Company, or their respective counsel that such certificates are to be so filed immediately after such confirmation and (C) on the Closing Date, but after the consummation of the Transaction, certified copies of such certificates of the consummation of the First Merger and the Second Merger from the Secretary of State of the State of Delaware;
(xvii) an assumption agreement in substantially the form of Exhibit K hereto (the "Assumption Agreement"), duly executed by the Surviving Corporation in connection with the Mergers;
(xviii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension; and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent knowledge of any applicable exchangesLoan Party or any of its Subsidiaries, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without threatened before any action being taken by any authority Governmental Authority or arbitrator that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior likely to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in have a manner that is adverse to the interests of the Lenders, in each case without the approval of the ArrangersMaterial Adverse Effect.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles or .pdf files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of (A) this Agreement, (B) the Assumption Agreement, (C) the Intercompany Subordination Agreement and (D) a Guaranty from each GuarantyGuarantor;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement, duly executed by each Loan Party theretoParty, together with:with (subject to the last paragraph of this Section 4.01):
(A) certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,Agent (including, without limitation, receipt of duly executed payoff letters, customary lien searches, UCC-3 termination statements and satisfactory evidence of insurance);
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party theretoParty, together with (subject to the last paragraph of this Section 4.01) evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such customary certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(vii) an opinion of Weil, Gotshal ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer opinions of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under local counsel for the Loan Documents;Parties, addressed to each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent; and
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or and/or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees Except as disclosed in any Company Report (as defined in the Merger Agreement) filed with the Securities and expenses required Exchange Commission prior to be paid on July 14, 2010 (excluding any risk factor disclosures set forth under the heading “Risk Factors” and any disclosure of risks included in any “forward-looking statements” disclaimer or before any other forward-looking statements of risk that do not contain a reasonable level of detail about the Closing Date specific risks of which the statements warn) or in Section 5.1(f) of the Company Disclosure Letter (or in any other section of the Company Disclosure Letter to the extent the relevance of such item is reasonably apparent from the face of such disclosure) to the Merger Agreement, since September 30, 2009, there shall not have been paid any changes, events or occurrences, that, individually or in full in cashthe aggregate, have had or are reasonably likely to have, a Company Material Adverse Effect.
(c) (i) All material consents The Administrative Agent shall have received a true and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting correct copy of the Liens on Merger Agreement (as certified by a Responsible Officer of the CollateralBorrower) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection the Merger shall be consummated concurrently with the Transaction shall have been obtained and shall remain initial funding of the Facilities in effect; all applicable waiting periods (includingaccordance with the Merger Agreement, without limitationwaiver or amendment thereof or consent thereunder (other than any such waiver, amendment or consent that is not materially adverse to the expiration or termination Lenders) unless consented to by the Arrangers (it being understood that any change in the purchase price (other than any increase funded solely by an increase in the Equity Contribution, and any decrease in the purchase price that is less than $250.0 million in the aggregate and is allocated on a pro rata basis between the Equity Contribution and the Facilities (allocated among the Facilities as determined by the Arrangers), based on their contemplated amounts as of the requisite waiting period under date of the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act Merger Agreement, shall require consent of 1975the Arrangers).
(i) The Acquisition Representations shall be true and correct, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations Specified Representations shall be true and other regulatory bodies specified correct in all material respects; (ii) the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers Borrower shall have received evidence the Equity Contribution; (iii) the Refinancing shall have been, or shall concurrently be, consummated; (iv) Merger Sub or the Company shall have issued and sold the Senior Notes in a Rule 144A or other private placement on the Closing Date yielding at least $650 million in gross cash proceeds on the Closing Date and (v) the Administrative Agent shall have received a certificate from the chief executive officer, president or chief financial officer of the Borrower, in form and substance reasonably satisfactory to them that the Company shall comply with Administrative Agent, certifying as to the provisions of matters set forth in this Section 6.184.01(d).
(e) The Arrangers Administrative Agent shall be reasonably satisfied with have received a solvency certificate from the Purchase Documentation chief financial officer of Holdings (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth ) substantially in the summary of terms form attached hereto as Annex II Exhibit I, together with supporting financial statements and calculations to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of extent reasonably requested by the Arrangers.
(f) Evidence Holdings, the Borrower and each of the Guarantors shall have provided the documentation and other information reasonably satisfactory requested in writing at least seven (7) days prior to the Administrative Agent that Closing Date by the Lenders in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least two (2) days prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated NotesClosing Date.
(g) The Arrangers All costs, fees, expenses (including without limitation legal fees and expenses, title premiums, survey charges and recording taxes and fees) and other compensation contemplated by the Commitment Letter and the Fee Letter payable to the Arrangers, the Agents or the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory been paid to the Arrangersextent due (and, in the case of consolidated balance sheetsexpenses, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"invoiced in reasonable detail), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers All actions necessary to establish that the Administrative Agent will have a perfected first priority security interest (subject to Liens permitted under Section 7.01) in the Collateral shall have received evidence reasonably been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.1. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Solgar)
Conditions of Initial Credit Extension. The obligation of each Initial Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's Agents’ receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each in form and substance reasonably satisfactory to the Administrative each Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the applicable Borrower in favor of each Lender requesting a Note;
(iii) the Security AgreementDocuments, each duly executed by each Loan Party party thereto, together with:
(A) certificates representing the Pledged Equity pledged securities referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed pledged debt referenced therein endorsed in blank,
(B) copies of all necessary lien searches with respect to the Loan Parties and the Collateral, together with copies of the financing statements disclosed by such searches, and accompanied by evidence reasonably satisfactory to the Agents that the Liens indicated in any such financing statement would be permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code PPSA or equivalent personal property legislation in all jurisdictions that the Administrative Agent Agents may deem reasonably necessary in order to perfect perfect, render opposable and protect the Liens created under the Security AgreementDocuments, covering the Collateral described in the Security AgreementDocuments,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement Documents that the Administrative Agent Agents may deem reasonably necessary in order to perfect perfect, render opposable and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative AgentAgents,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative any Agent may reasonably require evidencing the identity, authority and capacity of each Loan Party and Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative any Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that Dollarama and each of the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(viivi) an opinion of Weil, Gotshal opinions from (A) Ropes & ▇▇▇▇▇▇ LLP, New York counsel to the Loan PartiesParties and (B) Stikeman Elliott LLP, Canadian counsel to the Loan Parties and any other local counsel listed on Schedule 4.01(a) (including, without limitation, with respect to Canadian withholding taxes), each addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative AgentAgents;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ixvii) a certificate attesting to the Solvency of the Loan Parties Holdings and its Subsidiaries (taken as a whole) after giving effect to the Transaction, from the chief financial officer a Responsible Officer of the BorrowerDollarama;
(xviii) a certified copy of the Transaction Documents, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent and the Initial Lenders shall reasonably request;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriateapplicable, under each insurance policy with respect to casualty and liability such insurance as to which the Administrative Agent Agents shall have requested to be so named;
(x) a pro forma combined balance sheet of Holdings and its Subsidiaries as of the Closing Date, after giving effect to the Transactions, together with a certificate of a Responsible Officer of Holdings to the effect that such statements fairly present in all material respects the pro forma financial position of Holdings and its Subsidiaries in accordance with Canadian GAAP;
(xi) certified copies a complete printed Confidential Information Memorandum relating to each of the Purchase Agreement Facilities and all material agreements, instruments confirmation that application has duly been made for a rating of the Facilities by S&P and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestby ▇▇▇▇▇’▇; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction Transactions shall have been obtained and shall remain in effecteffect (other than landlord consents with respect to retail leases of the Business which have not been obtained as of the Closing Date); all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction Transactions shall have expired without any action being taken by any competent authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingTransactions.
(d) The Arrangers Purchase Agreement shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18be in full force and effect.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior Prior to or simultaneously with the initial Credit Extensions Extension, (i) the Borrower Equity Contributions shall have been funded in full (ii) the Senior Subordinated Loans shall have been funded in full pursuant to the Senior Subordinated Credit Agreement, and (iii) the Acquisition (other than the exercise of the Heritage Inventory Option (as defined in the Purchase Agreement)) shall be consummated in accordance with the terms of the Purchase Agreement, without any waiver or amendment that would be materially adverse to the interests of the Lenders (unless the Agents shall have consented to such waiver or amendment) and in any event disclosed in writing to the Agents, and in compliance with applicable material Laws and regulatory approvals, all as certified (in form and substance satisfactory to the Agents) by a Responsible Officer.
(f) The final terms and conditions of each material aspect of the Acquisition shall be (i) as described in the Purchase Agreement as in effect on October 21, 2004 and in the commitment letter dated as of November 18, 2004, as amended, among Canadian Holdco, the Initial Lenders and the Agents and (ii) to the extent not described in the documents described in clause (i) or in other information provided by Canadian Holdco to the Initial Lenders and the Agents prior to October 21, 2004, reasonably satisfactory to the Agents. The Agents shall have received at least $600,000,000 in gross cash proceeds from certified copies of, and be reasonably satisfied with all material agreements, instruments and documents relating to the issuance and sale of the Senior Subordinated NotesTransaction.
(g) The Arrangers Immediately after giving effect to the Transactions and the Lenders other transactions contemplated hereby, Holdings and its Subsidiaries shall have received: no outstanding Indebtedness or preferred stock other than (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28Indebtedness outstanding under this Agreement, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the BorrowerSenior Subordinated Facility, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings the NB Subordinated Debt and the Borrower to Subco Subordinated Debt and (iv) the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be materialIndebtedness set forth on Schedule 7.03(b).
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Sources: Credit Agreement (Dollarama CORP)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each the Subsidiary Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a security agreement, in substantially the Security Agreementform of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "SECURITY AGREEMENT"), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security AgreementAgreement (to the extent intended by the terms thereof to be created thereby), covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) subject to Section 6.21, evidence that each Loan Party has taken or caused to be taken all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentthereby,
(ivE) the Intellectual Property Security Agreementsubject to Section 6.21, duly executed by each Loan Party thereto, together with evidence that all other action that the Administrative Agent in its reasonable judgment may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement (to the extent intended by the terms thereof to be created thereby) has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords' and bailees' waiver and consent agreements);
(iv) an intellectual property security agreement, in substantially the form of Exhibit I hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party, together with evidence that all actions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement (to the extent intended to be created thereby) has been taken, including without limitation, filing and recordal of such Intellectual Property Security Agreement with the appropriate authorities;
(v) a duly executed pledge agreement or equivalent document, together with any other documents necessary to create and perfect a security interest over up to 66% of the Equity Interest issued by any first-tier Foreign Subsidiary of the Borrower that is a CFC, legal opinions of applicable foreign counsel in form and substance reasonably satisfactory to the Administrative Agent and evidence that all steps necessary to accomplish such creation and perfection under the law of the jurisdiction of organization of the relevant Foreign Subsidiary have been taken and remain in full force and effect;
(vi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in its each jurisdiction where the ownership, lease or operation of organizationproperties or the conduct of such Loan Party's business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an a favorable opinion of Weil(x) Schulte Roth & Zabel LLP and (y) Dykema Gossett PLL▇, Gotshal & ▇▇▇▇s▇▇ ▇o t▇▇ ▇▇an Parties, a▇▇▇▇▇▇e▇ ▇▇ ▇▇ch Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a favorable opinion of Katten Muchin Zavis Rosenman, counsel for Wind Poin▇ ▇▇▇▇▇▇▇▇, ▇e▇▇▇▇▇▇▇ LLP, counsel ▇▇ ▇▇▇nection with the Acquisition which opinion is either (A) addressed to the Loan Parties, Agents and the Lenders and expressly states that the Agents and the Lenders may rely on such opinion or (B) accompanied by a reliance letter from such counsel addressed to each Agent the Agents and each Lender the Lenders that expressly states that the Agents and each in form and substance reasonably satisfactory to the Administrative AgentLenders may rely on such opinion;
(viiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of Holdings and the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no changeevent or circumstance since (i) in the case of the Borrower, effectthe date of the Audited Financial Statements and (ii) in the case of Holdings, event, occurrence or state the date of facts since February 29, 2004its formation, that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxii) a certificate certificates and letters attesting to the Solvency of each Loan Party (other than inactive Subsidiaries of the Loan Parties (taken as a wholeBorrower) before and after giving effect to the Transaction, from the chief financial officer of the Borrowerits Chief Financial Officer;
(xxiii) certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries as the Administrative Agent shall request;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that together with endorsements naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, in each case, under each all such insurance policy with respect to casualty and liability insurance policies, as to which the Administrative Agent shall have requested to be so namedapplicable;
(xixv) certified copies of each of the Purchase Agreement and Related Documents, duly executed by the parties thereto together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and;
(xiixvi) a Committed Loan Notice or Letter of Request for Credit ApplicationExtension, as applicable, relating to the initial Credit Extension;
(xvii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released (except for Liens with respect to up to $100,000 retained to secure indemnity obligations thereunder) and the Administrative Agent shall be satisfied with all arrangements made with respect to the Existing Letters of Credit; and
(xviii) evidence that the Existing Subordinated Notes have been or concurrently with the Closing Date are being redeemed or exchanged for Equity Interests in the Borrower.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) (i) All requisite material consents governmental authorizations and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) for governmental authorizations in connection with the Transaction shall have expired without any action being taken by any authority Governmental Authority, and no Law shall be applicable in the judgment of the Administrative Agent, in each case that could restrainrestrains, prevent prevents or impose any material imposes materially adverse conditions on any upon the Transaction or the rights of the Loan Parties or the Transaction their Subsidiaries freely to transfer or that could seek otherwise dispose of, or threaten to create any Lien on, any properties now owned or hereafter acquired by any of the foregoingthem.
(d) The Arrangers Acquisition shall have received evidence reasonably satisfactory to them that the Company shall comply been consummated in accordance with the provisions terms of Section 6.18the Purchase Agreement, without any amendment, waiver or other material change not consented to by the Arranger of any term, provision or condition set forth therein, (other than waivers, amendments or other material changes that are reasonably determined by the Arranger not to be materially adverse to the Lenders), and in compliance with all applicable requirements of Law.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in have (i) a pro forma Consolidated EBITDA for the summary of terms attached as Annex II to the Commitment Letter dated as of June 8twelve-month period ended March 31, 2004 among of at least $54,000,000, and (ii) a pro forma Funded Debt to Consolidated EBITDA ratio for the Borrowertwelve-month period ended March 31, 2004 of not greater than 5.90:1.00 calculated as if the Arrangers and Transaction had occurred on the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests first day of the Lenders, in each case without the approval of the Arrangerssuch twelve-month period.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the The Borrower shall have received at least $600,000,000 150,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated NotesNotes or from the incurrence of loans under the Bridge Facility, in lieu thereof.
(g) The Arrangers and the Lenders Arranger shall have received: be satisfied with (i) audited consolidated financial statements the final terms and conditions of each aspect of the Borrower Transaction consistent with the Information Memorandum and other information and projections delivered to the Arranger prior to the Closing Date, including without limitation, all tax aspects thereof, (ii) any changes to the pro forma capital and ownership structure (including all Equity Interests and debt financings) and the shareholder arrangements of Holdings and its Subsidiaries for Subsidiaries, including, without limitation, the fiscal years ended February 28Organization Documents, 2003 and February 29since June 1, 2004 (other than changes that are reasonably determined by the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory Arranger to be not materially adverse to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"Lenders), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer all material terms and conditions of all material liabilities of Holdings and the Borrower its Subsidiaries to the effect that remain outstanding following the Closing Date Forecasts were prepared Date. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in good faith upon reasonable assumptions at the time of preparationthis Section 4.01, it being understood each Lender that actual results may vary from such forecasts and that such variations may has signed this Agreement shall be material.
(h) The Arrangers shall deemed to have received evidence reasonably consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each GuarantyLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a security agreement, in substantially the Security Agreementform of EXHIBIT G (together with each other security agreement and security agreement supplement delivered pursuant to SECTION 6.12, in each case as amended, the "SECURITY AGREEMENT"), duly executed by each Loan Party thereto(excluding certain Foreign Subsidiaries listed on SCHEDULE 6.12 as limited recourse Guarantors), together with:
(A) to the extent (x) the applicable Equity Interests are certificated, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and to the extent such instruments exist, instruments evidencing the Pledged Debt indorsed in blank,, and (y) such Equity Interests are of Significant Foreign Subsidiaries, Local Law Collateral Documents with respect to the Pledged Equity in the applicable Key Foreign Pledge Jurisdiction;
(B) copies of all necessary searches with respect to the Collateral, and all (x) proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may reasonably deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, and (y) in the case of any Local Law Collateral Documents with respect to Equity Interests of Significant Foreign Subsidiaries, evidence of the completion of all actions, recordings and filings as may be necessary in order to perfect the Liens created under such Local Law Collateral Documents in the applicable Key Foreign Pledge Jurisdiction,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the Local Law Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary in order to perfect and protect the Liens created thereby shall have under the Security Agreement has been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,taken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) an intellectual property security agreement, in substantially the Intellectual Property form of EXHIBIT A to the Security AgreementAgreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to SECTION 6.12, in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken (including, without limitation, as to Significant Marks in Key Foreign Operating Jurisdictions);
(v) (A) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyparty or is to be a party and (B) a copy of a Certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party certifying (1) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary's office and (2) that such amendments are the only amendments to such Loan Party's charter on file in such Secretary's office;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an a favorable opinion of WeilWachtell, Gotshal Lipton, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in EXHIBIT I-1;
(viii) a favorable opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, Delaware counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in EXHIBIT I-2;
(ix) a favorable opinion of the General Counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in EXHIBIT I-3;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in SECTIONS 4.02(A) and (B) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(1xii) have a material adverse effect on certificate from the businessChief Financial Officer of the Borrower attesting that, operationsboth before and after the execution and delivery of the Loan Documents and the consummation of the transactions contemplated thereby, assetseach of (A) the Borrower, liabilities Dart and BCICIS is and will be Solvent, (actual or contingent)B) after excluding all Indebtedness owed to Loan Parties, results of operations or condition Tupperware International Holdings Corporation, Premiere Products, Mexico S de ▇.▇. and ▇▇▇▇ ▇▇▇ Mexicana Holdings S de ▇.▇. de C.V. is and will be Solvent, and (financial or otherwise), of Holdings and its Subsidiaries (including C) the Target Borrower and its Subsidiaries), taken as on a wholeconsolidated basis, or (2) adversely affect the rights are and remedies of the Lenders under the Loan Documentswill be Solvent;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixiv) certified copies of each of the Purchase Related Documents, duly executed by the parties thereto;
(xv) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated;
(xvi) evidence that on or prior to the Closing Date all obligations of the Borrower and all material agreementsits Subsidiaries in respect of the 2006 Notes shall have been discharged in full, instruments as a result of which the covenants, defaults and other documents delivered provisions under the 2006 Notes Documents are no longer in connection therewith as effect, in accordance with the Administrative Agent shall reasonably requestterms of the 2006 Notes Documents; and
(xiixvii) a Committed Loan Notice evidence that on or Letter of Credit Application, as applicable, relating prior to the initial Credit ExtensionClosing Date the 2011 Notes shall have been repaid in full and all other amounts in respect thereof, including all accrued interest and any make-whole premium, or otherwise owing under the 2011 Notes Documents shall have been paid in full and that the 2011 Notes Documents are no longer in effect, in accordance with the terms of the 2011 Notes Documents.
(b) All fees and expenses required to be paid to the Administrative Agent, the Arranger and the Lenders on or before the Closing Date shall have been paid in full in cashpaid.
(c) Unless waived by the Administrative Agent solely in respect of this SECTION 4.01(c), the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (i) All material consents and approvals necessary in connection with provided that such estimate shall not thereafter preclude a final settling of accounts between the Loan Documents Borrower and the transactions contemplated thereby Administrative Agent).
(including without limitation d) The Acquisition to be consummated on the granting Closing Date and each other aspect of the Liens on Transaction (other than the Collateralfunding of the Facilities) shall have been obtainedconsummated in accordance with the terms and conditions of the Related Documents in all material respects and in compliance with applicable law and regulatory approvals in all material respects.
(e) The Arranger, on behalf of the Lenders, shall have received, in form and substance reasonably satisfactory to the Arranger, audited consolidated balance sheets of the Business, and the related audited consolidated statements of income or operations, shareholders' equity and cash flows, for each of the three fiscal years ended on and prior to July 2, 2005, and a report of PriceWaterhouseCoopers LLP or another accounting firm of international recognition reasonably acceptable to the Arranger (iiall such audited financial statements, adjustments and reports, collectively, the "REQUIRED FINANCIAL STATEMENTS"), such Required Financial Statements to be in reasonable detail and prepared in accordance with GAAP.
(f) all material All governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the including ▇▇▇▇-▇▇▇▇▇- -▇▇▇▇▇▇ Antitrust Improvements Act of 1975, clearance) and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) approvals necessary in connection with the Transaction Acquisition to be consummated on the Closing Date and the other aspects of the Transaction, including the related financings and other transactions contemplated hereby, shall have been obtained and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken by any authority that could reasonably be expected to have a Material Adverse Effect, and no law or regulation shall be applicable that would restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: received (i) audited the PRO FORMA consolidated financial statements of the Borrower referred to in SECTION 5.05(d) and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form and substance reasonably satisfactory to the ArrangersArranger, of consolidated balance sheets, sheets and statements of income statements or operations and cash flow statements for each quarter of the Borrower and its Subsidiaries on a quarterly basis for the first four quarters year following the Closing Date and on an annual basis for each year commencing with thereafter until the fiscal year ending on February 28, 2005 through Maturity Date for the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be materialTerm B Facility.
(h) After giving effect to the Transaction, including all Credit Extensions made in connection therewith, the amount by which (i) the sum of the aggregate Revolving Credit Commitments and unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries exceeds (ii) the sum of (A) the Outstanding Amount of Revolving Credit Loans and Swing Line Loans and (B) the Outstanding Amount of L/C Obligations shall be no less than $125,000,000.
(i) The Arrangers Borrower and its Subsidiaries shall have a ratio of (i) Consolidated Funded Indebtedness (net of unrestricted cash and cash equivalents) of the Borrower and its Subsidiaries as of the Closing Date after giving effect to the Transaction to (ii) PRO FORMA Consolidated EBITDA for the twelve-month period ended July 2, 2005 (calculated as if the Transaction had occurred on the first day of such twelve-month period), of not greater than 3.50:1.00.
(j) The Facilities shall have received evidence reasonably a debt rating from each of ▇▇▇▇▇'▇ and S&P. Without limiting the generality of the provisions of SECTION 9.04, for purposes of determining compliance with the conditions specified in this SECTION 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the each relevant Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) the Security Agreement, duly executed by each Loan Party thereto, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(vii) an opinion of Weil, Gotshal opinions from Ropes & ▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Borrower Company certifying that there has been no change, effect, event, occurrence or state of facts since February 29December 31, 20042003, that has had or could reasonably be expected to (1) have result in a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Change;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer Chief Financial Officer of the BorrowerCompany;
(x) a certified copy of the Sponsor Management Agreement, including a certification by a Responsible Officer of the Company that such agreement is in full force and effect as of the Closing Date;
(xi) evidence that all insurance (including without limitation title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability such insurance as to which the Administrative Agent shall have requested to be so named;
(xixii) certified copies of the Purchase Agreement and Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent and the Initial Lenders shall reasonably request; and, each including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(xiixiii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension; and
(xiv) final projections through the scheduled maturity of the Facilities that in the reasonable discretion of the Administrative Agent are not inconsistent in a material and adverse manner with the projections provided before the date hereof.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained on reasonably satisfactory terms and shall remain be in full force and effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- -▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction1976) in connection with the Transaction shall have expired without any action being taken taken, sought or threatened by any competent authority that could restrain, prevent or otherwise impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingTransaction.
(d) The Arrangers There shall have received evidence be no litigation or administrative proceedings or other legal or regulatory developments that would be reasonably satisfactory likely to them that prohibit or to impose burdensome conditions on the Company shall comply with consummation of the provisions of Section 6.18Transaction or to result in a Material Adverse Change.
(e) The Purchase Agreement shall be in full force and effect.
(f) Prior to or simultaneously with the initial Credit Extension, (x) the Equity Contributions shall have been funded in full in cash; and (y) the Acquisition shall be consummated in accordance with the terms of the Purchase Agreement and in compliance with applicable material Laws and regulatory approvals, and no provision of the Purchase Agreement (or any other documents in connection with the Acquisition) shall have been waived, amended, supplemented or otherwise modified in a manner material and adverse to the interests of the Lenders (unless the Arrangers shall have consented in writing to such waiver, amendment, supplement or other modification).
(g) The final terms and conditions of each material aspect of the acquisition of UGS PLM Solutions shall be (i) as described in the Purchase Agreement as in effect on March 12, 2004, in the commitment letter dated as of March 12, 2004 among Holdings and the Initial Lenders and in Side Letter Agreement Number 1 to UGS PLM Stock Purchase Agreement dated April 8, 2004, by and among the Parent, the Seller and UGS PLM Solutions, Side Letter Agreement Number 2 to UGS PLM Stock Purchase Agreement dated April 26, 2004, by and among the Parent, the Seller and UGS PLM Solutions and the Side Letter Agreement, dated as of May 27, 2004, by and among the Parent, the Seller and UGS PLM Solutions and (ii) to the extent not described in the documents described in clause (i) or in other information provided by Holdings to the Initial Lenders prior to March 12, 2004, reasonably satisfactory to the Initial Lenders and the Arrangers. The Initial Lenders and the Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood all material agreements, instruments and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect documents relating to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(fh) Evidence reasonably satisfactory to the Administrative Agent that prior Prior to or simultaneously with the initial Credit Extensions the Borrower Company shall have received at least $600,000,000 550,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated NotesNotes and related forward hedge agreements. The capital structure of each Loan Party after the consummation of the Transactions shall be reasonably satisfactory in all respects to the Arrangers.
(gi) The Arrangers shall be reasonably satisfied that the ratio of pro forma consolidated debt to EBITDA (for the purposes of this clause (i) to be defined as net income, plus provisions for income taxes, plus restructuring charges, plus depreciation and amortization, plus interest expense, in each case as set forth on the consolidated financial statements of UGS PLM Solutions presented in accordance with GAAP) of the UGS PLM Solutions and its Subsidiaries for the trailing four quarters ended immediately prior to the Closing Date for which financial statements are available shall not exceed 5.0 to 1.0. If UGS PLM Solutions would not otherwise meet this condition, it may obtain additional equity from Sponsors and management in at least an amount that would allow this condition to be met at the Closing Date. All calculations pursuant to this clause (i) shall be reasonably satisfactory to the Administrative Agent and the Arrangers. Such additional equity will be used to reduce the Facilities and/or Senior Subordinated Notes on terms to be agreed upon.
(j) The Arrangers and the Lenders shall have received: received (i) audited financial statements of UGS PLM Solutions for the two most recent fiscal years and (ii) unaudited interim consolidated financial statements of UGS PLM Solutions for each fiscal month (if available) and quarterly period (if available) ended after the Borrower latest fiscal year referred to in clause (i) above and such financial statements shall not reflect any Material Adverse Change in the consolidated financial condition of UGS PLM Solutions and its Subsidiaries for from what was reflected in the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory financial statements or projections previously furnished to the Arrangers, of consolidated balance sheets, income statements Arrangers or the Lenders; provided that all annual and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which quarterly financial statement information shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were be prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be materialaccordance with GAAP.
(hk) The Arrangers and the Lenders shall have received evidence the Pro Forma Balance Sheet. Each Borrower shall also have provided such other financial information as the Arrangers may reasonably satisfactory to them that request in connection with the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullTransactions.
Appears in 1 contract
Sources: Credit Agreement (UGS PLM Solutions Asia/Pacific INC)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent's receipt Agents of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and its their legal counsel:
(i) executed counterparts of this Agreement Agreement, executed by the Borrower, each Guarantor, each Agent and (subject to Section 11.21) each GuarantyLender;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Shared Security Agreement and Non-Shared Security Agreement, duly executed by each Loan Party party thereto, together with:
(A) to the extent not previously delivered to the Collateral Agent or the Collateral Trustees, as applicable, certificates representing the Pledged Equity referred to therein (and as defined) in the Non-Shared Security Agreement or the Shared Security Agreement, as the case may be, accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to (and as defined) therein indorsed in blank,
(B) copies of all necessary searches with respect to the Collateralextent not already duly filed pursuant to the Existing DHI Credit Agreement or as requested by the Administrative Agent, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent Agents may deem reasonably necessary or desirable in order to perfect the first (other than any Permitted Liens) priority liens and protect the Liens security interests created under the Non-Shared Security Agreement or the Shared Security Agreement, as applicable, covering the Collateral described in the Non-Shared Security Agreement or the Shared Security Agreement, as applicable,
(C) evidence that all other actions, recordings and filings of or insurance in effect as of the Closing Date with respect to the Security Agreement Borrower and its Restricted Subsidiaries as described on Schedule 4.01(a)(iii)(C) (it being understood that the Administrative Agent may deem reasonably necessary in order delivery of such evidence is a condition precedent under this Section 4.01 only and that the Borrower’s obligation to perfect maintain insurance from and protect after the Liens created thereby Closing Date shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentbe governed by Section 6.07),
(ivD) amendments to the Intellectual Property Security Control Agreements and Account Control Agreements referred to in the Non-Shared Security Agreement, duly executed by each Loan Party theretothe securities intermediaries and depositary banks, together with as applicable, referred to in the Non-Shared Security Agreement, as necessary, and
(E) evidence that all other action that the Administrative Agent in its reasonable judgment Agents may reasonably deem reasonably necessary in order to perfect the first (other than any Permitted Liens) priority liens and protect the Liens security interests created under the Intellectual Property Non-Shared Security Agreement and the Shared Security Agreement has been takencommenced (other than the filings referred to in clause (B) above);
(iv) supplements (the “Mortgage Supplements”) to the Mortgages set forth on Schedule 4.01(a)(iv), substantially in the form of Exhibit G (with such changes as may be required to account for local law matters), duly executed by the appropriate Loan Party, together with:
(A) delivery of the Mortgage Supplements in the appropriate form for filing or recording in order to continue a valid first and subsisting Lien, subject only to (i) Permitted Encumbrances (as defined in the Mortgages) and (ii) Permitted Liens, in each case on the property described therein, in favor of the Collateral Agent or the Collateral Trustees, as the case may be, for the benefit of the appropriate Secured Parties and reasonable evidence that all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees required to be paid in connection with the filing or recording of such Mortgage Supplements shall be paid;
(B) regarding all Real Property for which Mortgages were obtained in connection with the Existing DHI Credit Agreement, (i) evidence in the form of updated title searches, title reports or “abstractor” certificates, “title” certificates or so-called “nothing further” certificates, as applicable, reasonably sufficient to determine whether each Loan Party and each of its Subsidiaries required to execute and deliver a Mortgage Supplement pursuant to this Agreement has good title in fee simple to, or valid leasehold interests in, all Collateral covered by the Mortgages (other than the properties comprised of “pipelines” or “gathering systems”) and (ii) a modification/date-down endorsement to each existing Mortgage Policy extending the effective date of the policy to the date of recording for the applicable Mortgage Supplement and insuring that that the modification of the insured mortgage does not impair the validity, enforceability or priority of the insured mortgage, as modified; and
(C) such other documents as may be reasonably necessary to record the Mortgage Supplements, to issue the modification/date-down endorsements, or to create, perfect or preserve the security interests granted by the Mortgages or the Mortgage Supplements;
(v) the Collateral Trust Agreement, duly executed by the parties thereto;
(vi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or assistant secretary of each Loan Party as the Administrative Agent Agents may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vivii) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an a favorable opinion of Weil, Gotshal & Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each Lender, in form and substance reasonably satisfactory to the Administrative AgentAgents;
(viiiix) a favorable opinion of appropriate local counsel to the Loan Parties in the jurisdictions set forth in Schedule 4.01(a), addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agents;
(x) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no changethe conditions specified in Sections 4.02(a), effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1b) and (c) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so namedsatisfied;
(xi) certified copies of the Purchase Agreement and all material agreementssuch financial, instruments business and other documents delivered in connection therewith information regarding each Loan Party and its Subsidiaries as the Administrative Agent Lenders shall reasonably request; andhave requested, including, without limitation, information as to obligations under Pension Plans, Multiemployer Plans (to the knowledge of any Loan Party), collective bargaining agreements and other arrangements with employees;
(xii) a Committed Loan Notice or Letter of Request for Credit Application, as applicable, Extension relating to the initial Credit Extension, provided that any such Request for Credit Extension that selects the Eurodollar Rate for the Credit Extensions to be made hereunder on the Closing Date shall have been so received by 12:00 noon (eastern time) three Business Days prior to the Closing Date, together with one or more written indemnities in form and substance satisfactory to the Payment Agent obligating the Borrower to compensate the Lenders for losses, costs and expenses of the type described in Section 3.05 that may be incurred by them in the event such Credit Extensions are not made on the date requested in such Request for Credit Extension;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying, as of the Closing Date, (A) that the elimination of substantially all the restrictive covenants, elimination or modification of certain events of default and elimination or modification of related provisions, in each case, contained in the 2003 Second Lien Indenture, has been consummated as contemplated in the Second Supplemental Indenture dated as of March 28, 2006 to the 2003 Second Lien Indenture, (B) that there exists no “Principal Property” (as defined in, and for purposes of Section 10.06 of, the 1996 Indenture) and (C) that the Liens on the Collateral securing the Secured Obligations are otherwise permitted under the terms of all agreements and instruments to which the Parent Guarantor, the Borrower or any of its Subsidiaries is a party, including, without limitation, the 1996 Indenture;
(xiv) the Borrower shall have entered into such cash collateral account agreements with respect to the Term L/C Collateral Account (and control agreements relating thereto) as the Collateral Agent shall request, each in form and substance satisfactory to the Collateral Agent, and the Borrower shall have funded the Term L/C Collateral Account in the amount required by Section 2.03(k) as of the Closing Date; and
(xv) such other collateral documents as the Administrative Agents may reasonably request.
(bi) All fees and expenses required to be paid on or before the Closing Date shall have been paid, (ii) to the extent that written invoices have been provided, all costs and expenses of the Agents shall have been paid and (iii) all accrued fees and (to the extent confirmed in full in cashwriting by the Payment Agent to the Borrower) other amounts owing to the Agents and the Lenders under (and as defined in) the Existing DHI Credit Agreement shall have been paid.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers Lenders shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that environmental affairs of the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings Parent Guarantor and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the ArrangersSubsidiaries.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals originals, electronic photocopies (“pdf’s”) or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement and each the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote at least three days prior to the Closing Date;
(iii) a security agreement, in substantially the form of Exhibit F (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing the financing statements and all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been takenthereby,
(E) copies of the Assigned Agreements referred to in the Security Agreement, completed or otherwise provided for in a manner reasonably satisfactory to and
(F) evidence that all other action that the Administrative Agent,Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) the Intercreditor Agreement, duly executed by all the parties thereto;
(v) an intellectual property security agreement, in substantially the form of Exhibit B to the Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party theretoParty, together with evidence that all action that in proper form for filing in the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect U.S Patent and protect Trademark Office and the Liens created under the Intellectual Property Security Agreement has been takenU.S. Copyright Office;
(vvi) (A) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyparty or is to be a party and (B) a copy of a Certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party certifying (1) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (2) that such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office;
(vivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and Holdings is validly existing, in good standing and qualified to engage in business in its jurisdiction Delaware and, in the case of organizationHoldings, Colorado;
(viiviii) an a favorable opinion of Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, as to the matters set forth in Exhibit G-1 and each such other customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in form and substance reasonably satisfactory Delaware, addressed to the Administrative AgentAgent and each Lender, as to the matters set forth in Exhibit G-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiix) a favorable opinion of Ropes & ▇▇▇▇ LLP, counsel for the Sellers, delivered in connection with the Acquisition and the Merger which opinion is either (A) addressed to the Administrative Agent and the Lenders or (B) accompanied by a reliance letter from such counsel addressed to the Administrative Agent and the Lenders that expressly states that the Administrative Agent and the Lenders may rely on such opinion;
(xi) receipt of all governmental, shareholder and third party consents (including ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance) and approvals necessary in connection with the Transaction (other than any third party consents the failure of which to obtain, in the good faith judgment of the Administrative Agent, would not be material and adverse to the interests of the Lenders), each of which shall be in full force and effect, and expiration of all applicable waiting periods without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on Holdings and its subsidiaries or the Transaction;
(xii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no changeevent or circumstance since December 31, effect, event, occurrence or state of facts since February 29, 2004, 2005 that has had or could be reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect, (1C) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies calculation of the Lenders under pro forma Consolidated Leverage Ratio, the Loan Documentspro forma Consolidated First Lien Leverage Ratio and the pro forma, adjusted Consolidated EBITDA for the period of four fiscal quarters ended as of March 31, 2007 in accordance with Section 4.01(i) and (D) the current Debt Ratings;
(ixxiii) a certificate attesting to the Solvency of the Loan Parties (taken as Borrower and the Guarantors on a whole) Consolidated basis, before and after giving effect to the Transaction, from the chief financial officer Treasurer of the Borrower;
(xxiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixv) certified copies of each of the Purchase Agreement Related Documents, duly executed by the parties thereto and in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; provided, that the Administrative Agent and the Lenders acknowledge that they are satisfied with (A) the Merger Agreement dated as of September 25, 2006 executed by the Sellers, Holdings, Merger Co. and the Companies and the exhibits and schedules thereto and (B) the Securities Purchase Agreement dated as of September 25, 2006 among the Equity Investors and Holdings and the exhibits thereto;
(xvi) copies of certificates of merger in form satisfactory to the Administrative Agent to effect the Merger and the Opco Merger in form appropriate to be filed with the Secretary of State of the State of Delaware on the Closing Date;
(xvii) an assumption agreement in substantially the form of Exhibit H (the “Assumption Agreement”), duly executed by the Surviving Corporation;
(xviii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of the Borrower, provided that such certificate shall only include calculations of the Consolidated Leverage Ratio and the Consolidated First Lien Leverage Ratio; and
(xiixix) a Committed Loan Notice evidence that the Existing Credit Agreement has been or Letter of concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Application, as applicable, relating to Agreement have been or concurrently with the initial Credit ExtensionClosing Date are being released.
(b) All fees and expenses required to be paid to the Administrative Agent, the Arranger and the Lenders on or before the Closing Date shall have been paid in full in cashpaid.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder of the Term Loans on the Closing Date is subject to satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles or.pdf files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party party thereto, each dated as of the Closing Date (as applicable)or, in the case of certificates of governmental officials or resolutions, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of (A) this Agreement Agreement, (B) the Intercompany Subordination Agreement, (C) a Guaranty from each Guarantor and each Guaranty(D) the Intercreditor Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note[Reserved];
(iii) the Security Agreement, duly executed by each Loan Party theretoParty, together with:
(A) subject to Section 6.11, certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,Agent (including, without limitation, receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(D) a Perfection Certificate duly executed by each Loan Party;
(iv) the each Intellectual Property Security Agreement, duly executed by each Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such customary certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications (including, without limitation, Organizational Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in its jurisdiction of organizationformation;
(vii) an opinion of Weil, Gotshal ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer an opinion of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under local counsel in Ohio for the Loan Documents;Parties, addressed to each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent; and
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to The Notes Refinancing shall be paid on or before consummated substantially concurrently with the Closing Date shall have been paid in full in cashinitial funding of the Term Loan.
(c) The Administrative Agent shall have received a solvency certificate from a Responsible Officer of Borrower (iafter giving effect to the Transaction) All material consents substantially in the form attached hereto as Exhibit F.
(d) Holdings, the Borrower and approvals necessary each of the Guarantors shall have provided, at least three (3) business days prior to the Closing Date, the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders in connection with the Loan Documents applicable “know your customer” and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtainedanti-money-laundering rules and regulations, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18PATRIOT Act.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation All costs, fees, expenses (it being understood including without limitation legal fees and agreed that the Purchase Documentation (iexpenses, title premiums, survey charges and recording taxes and fees) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory other compensation payable to the Arrangers), and after giving effect the Agents or the Lenders shall have been paid to the Transactionextent due (and, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary case of terms attached as Annex II expenses, invoiced three Business Days prior to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the ArrangersClosing Date).
(f) Evidence reasonably satisfactory Subject to Section 6.11, all actions necessary to establish that the Administrative Collateral Agent that prior will have (i) a perfected first priority security interest in the Term Loan Collateral and (ii) a perfected second priority security interest in the ABL Collateral (in each case, subject to or simultaneously with the initial Credit Extensions the Borrower Liens permitted under Section 7.01) shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notesbeen taken.
(g) The Arrangers and the Lenders Arranger shall have received: received (ia) audited consolidated financial statements balance sheets of the Borrower and its Subsidiaries related statements of income, changes in equity and cash flows of the Borrower for the three most recently completed fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following at least 90 days before the Closing Date and (b) unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Borrower for each year commencing with subsequent fiscal quarter after the fiscal year quarter ending on February 28December 31, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that 2013 ended at least 45 days before the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material(other than any fiscal quarter ended on December 31).
(h) The Arrangers representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of June 23the Closing Date, 2003 among Refco Group Ltd.except to the extent that such representations and warranties specifically refer to an earlier date, LLCin which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(i) No Default shall exist, as borroweror would result from such proposed Credit Extension or from the application of the proceeds therefrom.
(j) Subject to Section 6.11, JPMorgan Chase Bank, as the Administrative Agent shall have been terminated received a copy of, or a certificate as to coverage under, the insurance policies required by Section 6.07 and all amounts outstanding the applicable provisions of the Security Agreement, each of which shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) and shall name the Collateral Agent, on behalf of the Secured Parties, as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(k) The ABL Credit Agreement shall be amended to permit the Transactions substantially concurrently with the initial funding of the Term Loans. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Domestic Borrower;
(ii) a Note executed by each of the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) the Security AgreementCollateral Documents, duly executed by each Loan Party theretoParty, to the extent applicable, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank (to the extent available in any non-U.S. jurisdiction) and the Administrative Agent shall have received satisfactory evidence that the Liens in favor of the Administrative Agent on the equity interests of the Foreign Loan Parties required to be pledged have been validly created, are enforceable and have been perfected under the laws of each applicable jurisdiction,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable (or the foreign equivalent thereof) in order to perfect and protect the Liens created under the Security AgreementCollateral Documents, covering the Collateral described in the Security AgreementCollateral Documents as well as UCC, Lien and Intellectual Property, charge, and other searches (to the extent available in any non-U.S. jurisdiction) and other evidence satisfactory to the Administrative Agent that such Liens are the only Liens upon the Collateral, except Liens permitted hereunder,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentthereby,
(ivE) the Intellectual Property Security Agreement, Account Control Agreements and Securities Account Control Agreements (if any) in each case as referred to in the Collateral Agreement and duly executed by each Loan Party thereto, together with the appropriate parties,
(F) evidence that all other action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement Collateral Documents has been takentaken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of WeilSheppard, Gotshal Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇, LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, as to matters concerning the Loan Parties and each the Loan Documents as the Required Lenders may reasonably request;
(vii) a favorable opinion of NautaDutilh New York P.C., local counsel to the Loan Parties in form and substance reasonably satisfactory the Netherlands, addressed to the Administrative AgentAgent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, local counsel to the Loan Parties in the United Kingdom, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of the Domestic Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Domestic Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) no action, suit, investigation, litigation or proceeding pending or, to the knowledge of either Borrower, threatened in any court or before any arbitrator or governmental instrumentality that in the Administrative Agent’s or Arranger’s judgment could reasonably be expected to (1) have a material adverse effect on Material Adverse Effect;
(xii) annual audited financial statements of the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings Domestic Borrower and its Subsidiaries (including on a consolidated basis for the Target fiscal years ended 2009, 2010 and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents2011;
(ixxiii) interim financial statements of the Domestic Borrower and its Subsidiaries on a certificate consolidated basis described in Section 5.05(b);
(xiv) pro forma financial statements for the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal period ending on September 30, 2012, including forecasts prepared by management of the Domestic Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Domestic Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(xv) certificates attesting to the Solvency of the Loan Parties (taken as a whole) each Borrower and their respective Subsidiaries before and after giving effect to the Transactionfinancing under this Agreement and the transactions contemplated hereby, from the chief financial officer of the each Borrower;
(xxvi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; including, without limitation, for each parcel of Material Real Property Collateral, (i) standard flood hazard determination forms and (ii) if any property is located in a special flood hazard area (A) notices to (and confirmations of receipt by) such Loan Party as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (B) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent;
(xvii) the documentation and other information as to each Loan Party as requested by the Administrative Agent has been named as loss payee or additional insured, as appropriate, under and each insurance policy Lender in order to comply with respect to casualty and liability insurance as to which requirements of the Administrative Agent shall have requested to be so namedPATRIOT Act;
(xixviii) certified copies of evidence that the Purchase Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all material agreements, instruments and other documents delivered in connection therewith as Liens securing obligations under the Administrative Agent shall reasonably requestExisting Credit Agreement have been or concurrently with the Closing Date are being released; and
(xiixix) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicablethe L/C Issuer, relating to the initial Credit ExtensionSwing Line Lender or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) the Domestic Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Domestic Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Lenders shall have received evidence reasonably satisfactory to them that completed a due diligence investigation of the Company shall comply Borrowers, their respective Subsidiaries in scope, and with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each caseresults, satisfactory to the Arrangers)Lenders, and after giving effect shall have been given such access to the Transactionmanagement, the corporate records, books of account, contracts and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests properties of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower Borrowers and their respective Subsidiaries and shall have received at least $600,000,000 in gross cash proceeds from the issuance such financial, business and sale other information regarding each of the Senior Subordinated Notes.
(g) The Arrangers foregoing Persons and the Lenders businesses as they shall have received: (i) audited consolidated financial statements requested; Without limiting the generality of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management provisions of the Borrowerlast paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Diodes Inc /Del/)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make its initial Credit Extension hereunder the amendment and restatement of the Existing Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies or copies sent by electronic transmission (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Senior Officer of the signing Loan Party (as where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) (where applicable) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Disclosure Letter, the Guaranty and each Guarantyaffirmation to the Interco Subordination Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of the Security Agreement and the Pledge Agreement, duly executed by each Loan Party thereto, together with:
(A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and tax lien and judgment searches;
(B) to the extent not on file, completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) to the extent not on file, certificates and instruments representing the Pledged Equity Interests (as defined in the Pledge Agreement) referred to therein accompanied by undated stock powers or instruments of transfer executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(BD) copies of all necessary searches with respect to the Collateralextent not on file and required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Security Documents, all proper financing statementsinstruments, duly prepared for filing under documents and chattel paper in the Uniform Commercial Code in all jurisdictions that possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to create and perfect the Administrative Agent may deem reasonably necessary Agent’s security interest in order the Collateral;
(E) to perfect and protect the Liens created under the Security Agreementextent not on file, covering the Collateral described Qualifying Control Agreements (as defined in the Security Agreement,) satisfactory to the Administrative Agent to the extent required to be delivered pursuant to the Security Agreement; and
(CF) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has Documents have been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Senior Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Senior Officer thereof authorized to act as a Responsible Senior Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organizationorganization and, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viivi) an a favorable opinion of Weil, Gotshal ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇, P.C., counsel to the Loan Parties, addressed to each Agent and the Administrative Agent, each Lender and each Issuing ▇▇▇▇▇▇, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) (A) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to the Loan Parties in form Massachusetts, and substance reasonably satisfactory (B) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Alabama, in each case addressed to the Administrative Agent, each Lender and each Issuing Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate signed by a Responsible Senior Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the 2022 Fiscal Year and on an annual basis for each Fiscal Year thereafter through the 2027 Fiscal Year;
(x) subject to Section 6.15, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, together with the certificates of insurance and that separate endorsements naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriatean additional insured or lender loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so named;Loan Parties that constitute Collateral; and
(xi) certified copies of the Purchase Agreement and all material agreementssuch other assurances, instruments and other documents delivered in connection therewith certificates, documents, consents or opinions as the Administrative Agent shall Agent, the Issuing Lenders, the Swing Line Lender or any Lender reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (iincluding one local counsel in each jurisdiction) All material consents (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) Upon the request of any Lender made at least five (5) days prior to the Closing Date, the Loan Parties shall have provided to such Lender, and such Lender shall be reasonably satisfied with, such documentation and other information that is reasonably requested in connection with the Loan Documents applicable “know your customer” and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtainedanti-money-laundering rules and regulations, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the LendersAct, in each case without the approval of the Arrangers.
at least three (f3) Evidence reasonably satisfactory to the Administrative Agent that days prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and (y) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for each year commencing purposes of determining compliance with the fiscal year ending on February 28conditions specified in this Section 4.01, 2005 through the fiscal year ending on February 28each Lender that has signed this Agreement shall be deemed to have consented to, 2011 (the "Closing Date Forecasts")approved or accepted or to be satisfied with, which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower each document or other matter required thereunder to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Sanmina Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement and each the Guaranty, sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a security agreement, in substantially the form of Exhibit F (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed Financing Statements in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the date of the initial Credit Extension, including the results of a recent search of all effective financing statements filed in the jurisdiction of incorporation of each Loan Party that name any Loan Party as debtor, together with copies of such other financing statements to the extent reasonably requested by the Administrative Agent,
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenthereby, completed or otherwise provided for in a manner reasonably satisfactory to and
(D) evidence that all other action that the Administrative Agent,Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) the Intellectual Property Security Pledge Agreement, duly executed by the Borrower and each Loan Party theretoGuarantor that holds Equity Interests in other Domestic Subsidiaries or in a first-tier Foreign Subsidiary, together with evidence that with:
(A) certificates, if any, representing the pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank, and
(B) Financing Statements in form appropriate for filing under the Uniform Commercial Code of all action jurisdictions that the Administrative Agent in its reasonable judgment may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takenPledge Agreement, covering the Collateral described in the Pledge Agreement;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of the secretary or a Responsible Officers Officer of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each of the Guarantors is validly existing, existing and in good standing and qualified to engage in business in its jurisdiction of organizationformation;
(vii) an opinion favorable opinions of Weil, Gotshal O’Melveny & ▇▇▇▇▇▇ LLP, counsel LLP and the General Counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of the Borrower either (A) stating that all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party have been obtained, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could would be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (1C) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies calculation of the Lenders under Total Adjusted Leverage Ratio as of the Loan Documents;
(ix) a certificate attesting last day of the fiscal quarter of the Borrower most recently ended prior to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the BorrowerClosing Date;
(x) evidence that certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance required to be policies maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitute Collateral;
(xi) certified copies of evidence that the Purchase Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all material agreementsLiens securing obligations under the Existing Credit Agreement have been, instruments and other documents delivered in connection therewith as or concurrently with the Administrative Agent shall reasonably requestClosing Date are being, released; and
(xii) a Committed Loan Notice an executed copy of the Closing Date Letter and such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicable, relating to the initial Credit ExtensionL/C Issuer or the Swing Line Lender reasonably may require.
(b) All fees and expenses required to be paid to the Administrative Agent or any Lender on or before the Closing Date shall have been paid in full in cashpaid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation Administrative Agent). Without limiting the granting generality of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers 9.01, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Guess Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the each relevant Borrower in favor of each Lender requesting a Note;
(iii) the Security AgreementDocuments, each duly executed by each Loan Party party thereto, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank,
(B) copies of all necessary searches with respect to the Loan Parties and the Collateral, together with copies of the financing statements (or similar documents) disclosed by such searches, and accompanied by evidence reasonably satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement Documents that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Perfection Certificate dated the Closing Date and duly executed by Holdings and the Company;
(v) the Intellectual Property Security Agreement, duly executed by each Loan Party party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(vvi) Mortgages (or in the case of New York, an assignment and Mortgage Modification Agreement with respect to the mortgages entered into in connection with the Existing Credit Agreements) covering each of the Mortgaged Leased Real Properties and each of the Mortgaged Owned Real Properties, in each case duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction with respect to the Mortgaged Owned Real Properties (the “Mortgage Policies”) in form and substance, with endorsements and in amount, reasonably acceptable to the Administrative Agent (not to exceed the value of the Mortgaged Owned Real Properties covered thereby), issued by a title insurer reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, free and clear of all defects and encumbrances, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents);
(C) Copies of the most recent survey (if any) of the Mortgaged Owned Real Properties in the possession of the Loan Parties on the Closing Date;
(D) opinions of local counsel for the Loan Parties in states in which the Mortgaged Leased Real Properties and the Mortgaged Owned Real Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings and such other matters as the Administrative Agent may reasonably request (including with respect to the payment of mortgage taxes), in form and substance reasonably satisfactory to the Administrative Agent; and
(E) such other evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to create valid and subsisting Liens on the property encumbered by the Mortgages has been taken (provided that, with respect to any Mortgaged Leased Real Property, such actions shall be consistent with and not violate the Loan Parties’ obligations under the applicable lease);
(vii) such certificates of resolutions, manager consent or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Loan Party and Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(viiix) an opinion of Weil, Gotshal opinions from (A) Ropes & ▇▇▇▇▇▇ LLP, New York counsel to the Loan PartiesParties and (B) each local counsel listed on Schedule 4.01(a), each addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ixx) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer Chief Financial Officer of the BorrowerCompany;
(xxi) a certified copy of the Sponsor Management Agreement;
(xii) evidence that all insurance (including without limitation title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriateapplicable, under each insurance policy with respect to casualty and liability such insurance as to which the Administrative Agent shall have requested to be so named;
(xixiii) certified copies of the Purchase Agreement and Agreements, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent and the Initial Lenders shall reasonably request; and
(xiixiv) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction Transactions shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- -▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction Transactions shall have expired without any action being taken by any competent authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingTransactions.
(d) The Arrangers Purchase Agreements shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18be in full force and effect.
(e) Prior to or simultaneously with the initial Credit Extension, (x) the Equity Contributions shall have been funded in full and (y) the Acquisition shall be consummated in accordance with the terms of the Purchase Agreements, without any waiver or amendment that would be materially adverse to the interests of the Lenders (unless the Administrative Agent and the Arrangers shall have consented in writing to such waiver or amendment), and in compliance with applicable material Laws and regulatory approvals.
(f) The final terms and conditions of each material aspect of the Acquisition shall be (i) as described in the Purchase Agreements as in effect on June 18, 2004 and in the commitment letter dated as of June 18, 2004, as amended, among the Parent, the Initial Lenders and the Arrangers and (ii) to the extent not described in the documents described in clause (i) or in other information provided by the Parent to the Initial Lenders and the Arrangers prior to June 18, 2004, reasonably satisfactory to the Initial Lenders and the Arrangers. The Initial Lenders and the Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood all material agreements, instruments and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect documents relating to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(fg) Evidence reasonably satisfactory to the Administrative Agent that prior Prior to or simultaneously with the initial Credit Extensions the Borrower Company shall have received at least $600,000,000 315,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) . The Arrangers terms and conditions of the Senior Subordinated Notes and the Lenders shall have received: (i) audited consolidated financial statements provisions of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form Senior Subordinated Notes Documents shall be reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts Administrative Agent. The Administrative Agent shall have been prepared; and (iii) a certificate from received copies of the Senior Subordinated Notes Documents, certified by a Responsible Officer of Holdings the Company as being complete and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be materialcorrect.
(h) The Arrangers All amounts due or outstanding under the Existing Credit Agreements shall have received evidence reasonably satisfactory been (or substantially contemporaneously with the initial Credit Extension shall be) paid in full, the commitments thereunder terminated and all guarantees thereof and security therefor released and discharged (except that Existing Letters of Credit may be deemed to them that be issued under the Revolving Credit Facility). All amounts due or outstanding under the Mexican Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been (or substantially contemporaneously with the making of the initial Credit Extension hereunder shall be) paid in full, the commitments thereunder terminated and all amounts outstanding thereunder guarantees thereof and security therefor released and discharged, or the Mexican Credit Agreement shall have been paid in full.modified to the extent necessary to avoid the occurrence of a default thereunder upon consummation of the Acquisition. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, Holdings and its Subsidiaries shall have no outstanding Indebtedness or preferred stock other than (i) Indebtedness outstanding under this Agreement, (ii) the Senior Subordinated Notes and (iii) the Indebtedness set forth on Schedule 7.03(b)
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each GuarantyLender and the Company;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) a pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.11, in each case as amended, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,;
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements;
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,thereby;
(ivE) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all other action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (other than Trilla-St. Louis, with respect to which such evidence shall be delivered pursuant to Section 6.17(b)) is duly organized or formed, and that each such Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of WeilVorys, Gotshal & ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, special counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, as to the matters set forth in Exhibit H-1 and each in form such other matters concerning the Loan Parties and substance the Loan Documents as the Required Lenders may reasonably satisfactory request;
(vii) a favorable opinion of the General Counsel of the Company, addressed to the Administrative AgentAgent and each Lender, as to the matters set forth in Exhibit H-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Administrative Agent and the Arrangers, addressed to the Administrative Agent and each Lender, as to the enforceability of the Loan Documents under New York law;
(ix) a certificate of a Responsible Officer of the Company, on behalf of each Loan Party, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Borrower Company, on behalf of each Loan Party, certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no changeevent or circumstance since October 31, effect, event, occurrence or state of facts since February 29, 2004, 2008 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(xxi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixii) certified copies of evidence that the Purchase Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all material agreementsLiens securing obligations under the Existing Credit Agreement have been, instruments and other documents delivered in connection therewith as or concurrently with the Administrative Agent shall reasonably requestClosing Date are being, released;
(xiii) evidence that the Liquidity Facility Loan Agreement has been, or concurrently with the Closing Date is being, terminated; and
(xiixiv) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicablethe L/C Issuer, relating to the initial Credit Extensionany Swing Line Lender or any Lender reasonably may require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) (i) All material consents and approvals necessary in connection with Unless waived by the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtainedAdministrative Agent, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions have paid all reasonable fees, charges and disbursements of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or simultaneously on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the initial Credit Extensions the Borrower shall have received at least $600,000,000 conditions specified in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrowerthis Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:: 103167989_7
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement executed by each Person a party thereto, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) counterparts of the Security Reaffirmation Agreement, duly executed by each Loan Party theretoParty, together with, to the extent not already on file with the Administrative Agent:
(A) certificates and instruments representing the Pledged Equity Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(B) copies of all necessary searches with respect to the Collateral, and all proper UCC financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,;
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that extent required to be delivered pursuant to the terms of the Collateral Documents, all instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to perfect the Administrative Agent may deem reasonably necessary Agent’s and the Secured Parties’ security interest in the Collateral; and
(i) searches of UCC or similar filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and protect the evidence that no Liens created thereby shall have been takenexist other than Liens permitted by Section 7.01, completed (ii) Tax lien, judgment and bankruptcy searches or otherwise provided for in a manner other evidence reasonably satisfactory to it that all Taxes, filing fees, recording fees related to the perfection of the Liens on the Collateral have been paid and (iii) searches of ownership of intellectual property in the appropriate governmental offices as requested by the Administrative Agent,;
(iv) to the extent applicable, a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement (as each such term is defined in Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each applicable Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower and each Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof 103167989_7 authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower or Guarantor is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and each Loan Party Guarantor is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an opinion favorable opinions of Weil, Gotshal ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. and Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Lender, dated as of the Closing Date, substantially in form and substance reasonably satisfactory to the Administrative Agentforms set forth in Exhibit J;
(viii) a certificate signed by a Responsible Officer of the Borrower (A) certifying that the conditions specified in Section 4.02(a) and 4.02(b) have been satisfied; (B) certifying that since December 31, 2017, there has been no change, effect, shall not have occurred any event, occurrence condition or state of facts since February 29, 2004, contingency that has had or could reasonably be expected to have a Material Adverse Effect; (C) either (1) have attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a material adverse effect on the businessparty, operationsand such consents, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings licenses and its Subsidiaries (including the Target approvals shall be in full force and its Subsidiaries), taken as a wholeeffect, or (2) adversely affect the rights stating that no such consents, licenses or approvals are so required; and remedies (D) attaching a calculation of the Lenders under Consolidated Leverage Ratio as of the Loan Documentslast day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ix) a solvency certificate attesting to substantially in the Solvency form of the Loan Parties (taken as a whole) after giving effect to the Transaction, from Exhibit I signed by the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriatean additional insured or lenders loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xiA) certified copies audited consolidated balance sheets of the Purchase Agreement Borrower and all material agreementsits consolidated Subsidiaries as at the end of, instruments and other documents delivered in connection therewith related statements of income and cash flows of the Borrower and its consolidated Subsidiaries for, the fiscal year ended December 31, 2017 and (B) unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the Administrative Agent shall reasonably requestend of, and related statements of income and cash flows of the Borrower and its consolidated Subsidiaries for the fiscal quarter of the Borrower and its consolidated Subsidiaries ended March 31, 2018; and
(xii) (A) a Committed Request for Credit Extension in accordance with the requirements hereof (including the notice periods set forth in Section 2.02(a) with respect to each Type of Loan Notice or Letter of Credit Applicationbeing requested on the Closing Date, as applicable, relating and with a copy to the initial L/C Issuer or the Swing Line Lender, if applicable), (B) a Funding Indemnity Letter (in a form provided by the Administrative Agent) with respect to any Eurodollar Rate Loans to be made on the Closing Date and (C) a customary flow of funds statement executed by the Borrower with respect to all Credit Extension.Extensions and other Transactions to occur on the Closing Date. 103167989_7
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents The Administrative Agent and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower Lenders shall have received at least $600,000,000 one Business Day before the Closing Date all documentation and other information about the Loan Parties and their Subsidiaries that shall have been reasonably requested by the Administrative Agent or the Lenders in gross cash proceeds from writing at least five (5) business days prior to the issuance and sale of Closing Date that the Senior Subordinated Notes.
(g) The Arrangers Administrative Agent and the Lenders shall reasonably determine is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Act (provided that such information shall, to the extent requested at least ten (10) Business Days prior to the Closing Date, have received: been provided at least five (i5) audited consolidated financial statements of Business Days prior to the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"Closing Date); and (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory at least five (5) Business Days prior to the ArrangersClosing Date, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall deliver a Beneficial Ownership Certification to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullany Lender requesting the same.
Appears in 1 contract
Sources: Credit Agreement (Quidel Corp /De/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuers and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note subject to Schedule 6.14, Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) evidence that the Security AgreementCollateral Documents shall be effective to create in favor of the Administrative Agent, duly executed by each Loan Party theretofor the benefit of the Secured Parties, together witha legal, valid and enforceable first security interest and Lien upon the Collateral, including, without limitation:
(A) searches of UCC filings in the jurisdiction of organization or formation of each Loan Party, in each jurisdiction where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, and in each other jurisdiction requested by the Administrative Agent,
(B) financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted hereunder,
(C) proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of each jurisdiction that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby;
(D) certificates and instruments representing the Pledged Equity Securities Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank and instruments evidencing the Pledged Debt indorsed in blank,; and
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(CE) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(viivi) an a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to each Agent customary for transactions of this type and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each Lender;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of this Agreement and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no changeevent or circumstance since December 31, effect, event, occurrence or state of facts since February 29, 2004, 2019 that has had or could would be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insuredeffect, as appropriate, under each insurance policy together with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so namedcertificates of insurance;
(xix) certified copies of the Purchase Agreement and all material agreementssuch other assurances, instruments and other documents delivered in connection therewith certificates, documents, consents or opinions as the Administrative Agent shall Agent, the L/C Issuers, the Swing Line Lender or any Lender reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) (i) All material consents and approvals necessary in connection with Unless waived by the Loan Documents and Administrative Agent, the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) Borrower shall have been obtainedpaid all fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination disbursements of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or simultaneously with to be incurred by it through the initial Credit Extensions the Borrower closing proceedings (provided that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"Administrative Agent); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Sources: Credit Agreement (TopBuild Corp)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent, in addition to each of the conditions set forth in Section 4.02, on or prior to April 25, 2014:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies of originals (followed promptly as soon as reasonably practicable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each GuarantyAgreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit E (the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock or other transfer powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order required to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed results of a search of the UCC filings made with respect to the Persons in the jurisdictions contemplated by the Collateral Questionnaire, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party as debtor disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements are permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order required to perfect and protect (subject to Section 4.7(b) of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that in the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect case of IP Rights) the Liens created under the Intellectual Property Security Agreement has been taken(including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) (A) a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying
(I) that attached thereto is a true and complete copy of each Organization Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state or jurisdiction of its organization, and a certificate as to the good standing of each Loan Party and each Company Group Party as of a recent date, from such Secretary of State,
(II) that attached thereto is a true and complete copy of resolutions duly authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, (III) as to the incumbency and specimen signature of each officer executing any Loan Document and (B) a certificate of another Responsible Officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (A) above;
(v) such certificates of resolutions, manager consent or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) an favorable opinion of Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Revolving Credit lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixvii) a certificate the Closing Date Projections;
(viii) certificates attesting to the Solvency of the Loan Parties (Parties, taken as a whole) whole after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestHoldings; and
(xiiix) a Committed completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Notice or Letter of Credit ApplicationParty, as applicable, relating to the initial Credit Extensiontogether with all attachments contemplated thereby.
(b) (i) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date, including pursuant to the Engagement Letter and the Fee Letter, shall have been paid.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) The Borrower shall have been obtainedpaid all reasonable and documented fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination disbursements of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition counsel to the consummation of Administrative Agent directly to such counsel to the Transaction) in connection with extent invoiced within two Business Days prior to the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingClosing Date.
(d) The Arrangers At least 3 Business Days prior to the Closing Date, the Lenders shall have received evidence reasonably satisfactory all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to them Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”) that has been requested at least ten (10) days prior to the Company shall comply with the provisions of Section 6.18Closing Date.
(e) The Administrative Agent and the Arrangers shall be reasonably satisfied with have received from Parent the Purchase Documentation Audited Financial Statements referred to in Section 5.05(a) and the unaudited financial statements referred to in Section 5.05(b) (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent audited financial statements filed on Form 10-K with the Purchase Agreement is, in each case, satisfactory to SEC shall satisfy the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is condition set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangersthis clause (e)).
(f) Evidence No event, circumstance or change shall have occurred since the date of the Audited Financial Statements that has resulted, or could reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect or a material adverse change in, or material adverse effect upon, the operations, business, properties, liabilities or financial condition of the Project Companies taken as a whole. Without limiting the generality of the provisions of clause (f) of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) the Security Agreementeach Collateral Document set forth on Schedule 1.01B, duly executed by each Loan Party thereto, together with:
(A) certificates certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,, and
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect satisfy the Collateral and protect the Liens created thereby Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,;
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the execution and delivery of this Agreement and the other Loan Documents to which such Loan Party is a partyparty or is to be a party on the Closing Date;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(viiA) an opinion of Weil, Gotshal from S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, New York counsel to the Loan PartiesParties substantially in the form of Exhibit I and (B) opinions from local counsel to the Loan Parties (not otherwise covered by the opinion described in immediately preceding clause (A)), addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders and dated the Closing Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request;
(viiivi) a certificate signed by a Responsible Officer substantially in the form of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ix) a certificate Exhibit H attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer Chief Financial Officer of the Borrower;
(xvii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability such insurance as to which the Administrative Agent shall have requested to be so named;
(xiviii) certified copies of the Purchase Agreement and Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Closing Date; and
(xiiix) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior Prior to or simultaneously with the initial Credit Extensions Extension, (i) the Equity Contributions of the Sponsors shall have been funded in full in cash, (ii) the Borrower shall have received (whether directly as a result of the Equity Contribution or as a result of an equity contribution by Holdings) cash proceeds or, with respect to Management Stockholders, other property or agreements entitling the Borrower to retain amounts of cash which would absent such agreement be payable to the Management Stockholders in connection with the Transaction, from the Equity Contribution in an aggregate amount equal to at least $240,000,000, and (iii) the Merger shall be consummated in accordance with the terms of the Merger Agreement (and no provision thereof (including the conditions precedent set forth therein) amended, modified, supplemented or waived to the extent materially adverse to the interests of the Lenders (taken as a whole) without the consent of the Arrangers, which consent shall not be unreasonably withheld).
(d) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have received at least $600,000,000 175,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(ge) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements Prior to the date of the Borrower initial Credit Extension hereunder, (x) the Target shall have commenced tender offers and consent solicitations with respect to its Subsidiaries Existing PIK Notes (the “Existing PIK Notes Tender Offer and Consent Solicitation”) pursuant to which, inter alia, consents shall be solicited to proposed amendments (the “Existing PIK Notes Indenture Amendment”) to the Existing PIK Notes Indentures, which amendments shall, inter alia, provide for the fiscal years ended February 28, 2003 substantial elimination of the covenants contained in the Existing PIK Notes Indentures and February 29, 2004 (y) Opco shall have commenced tender offers and consent solicitations with respect to each of the Existing Opco Notes (the "Historical Financial Statements"); “Existing Opco Notes Tender Offers and Consent Solicitations”) pursuant to which, inter alia, consents shall be solicited to proposed amendments (iithe “Existing Opco Notes Indenture Amendments”) forecasts prepared by management to each of the BorrowerExisting Opco Notes Indentures, each in form reasonably satisfactory to the Arrangerswhich amendments shall, of consolidated balance sheetsinter alia, income statements and cash flow statements for each quarter provide for the first four quarters following substantial elimination of the Closing Date and for each year commencing with covenants contained in the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be materialExisting Opco Notes Indentures.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each GuarantyLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, provided that the Borrower receives a request for any such Note at least two Business Days prior to the Closing Date;
(iii) a pledge and security agreement, in substantially the form of Exhibit F (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to thereby,
(D) evidence that all other action that the Administrative Agent,Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) the an Intellectual Property Security Agreement, duly executed by each Loan Party theretoowning any Intellectual Property Collateral (as defined in the Security Agreement), together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the such Intellectual Property Security Agreement has been taken;
(v) the Intercreditor Agreement, duly executed by the Borrower, the other Loan Parties party thereto, the Administrative Agent and ▇▇▇▇▇ Fargo Capital Finance, LLC, as administrative agent under the ABL Credit Agreement;
(vi) the charter document of each Loan Party, certified as of a recent date prior to the Closing Date by the Secretary of State (or comparable official) of such Loan Party’s jurisdiction of incorporation;
(vii) a certificate of the Secretary or an Assistant Secretary or Responsible Officer of each Loan Party, dated the Closing Date, certifying (A) that attached thereto are true and correct copies of the Organization Documents of such Loan Party; and (B) that there are no proceedings for the dissolution or liquidation of such Loan Party;
(viii) such customary certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viix) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viix) an a favorable opinion of Weil, Gotshal Shearman & ▇▇▇▇▇▇ Sterling LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, as to the matters set forth in Exhibit H-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xi) a favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Delaware, a favorable opinion of ▇▇▇▇▇▇▇▇▇ Traurig LLP, local counsel to the Loan Parties in Virginia, a favorable opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an in-house counsel of the Borrower, with respect to certain matters under the Indiana law, each in form and substance reasonably satisfactory addressed to the Administrative AgentAgent and each Lender, as to the matters set forth in Exhibits H-2, H-3 and H-4, respectively, and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiixii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (1C) have the current Debt Ratings;
(xiii) a material adverse effect on business plan and budget of the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings Borrower and its Subsidiaries (on a consolidated basis, including forecasts prepared by management of the Target Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a monthly basis for the first year following the Closing Date;
(xiv) certificates attesting to the Solvency of the Borrower and its Material Subsidiaries), taken as a whole, or (2) adversely affect the rights before and remedies of the Lenders under the Loan Documents;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(xxv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixvi) certified copies a duly completed pro forma Compliance Certificate as of the Purchase Agreement last day of the fiscal quarter of the Borrower ended September 30, 2010, signed by a Responsible Officer of the Borrower;
(xvii) evidence that the Existing Credit Agreements have been, or concurrently with the Closing Date are being, terminated and all material agreementsLiens securing obligations under the Existing Credit Agreements have been, instruments or concurrently with the Closing Date are being, released, and the notes issued under the Existing Third Lien Indenture shall have been repaid in full;
(xviii) the Diligence Certificate, duly executed by the Loan Parties; and
(xix) such other documents delivered in connection therewith assurances, certificates, documents, consents or opinions as the Administrative Agent shall or any Lender reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(b) All (i) the Fee Letter shall have been executed, (ii) all fees and expenses required to be paid to the Administrative Agent, the Arrangers, the Syndication Agent and the Documentation Agents on or before the Closing Date shall have been paid in full in cashand (iii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the The transactions contemplated thereby by the ABL Credit Agreement shall have closed on terms satisfactory to the Administrative Agent and no more than $30,000,000 (including without limitation excluding the granting roll over of any existing letters of credit) shall be drawn under the ABL Credit Agreement on the Closing Date. The Administrative Agent shall have received a copy of each of the Liens on the Collateral) shall have been obtainedfully executed and effective ABL Loan Documents, each in form and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition substance reasonably satisfactory to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent.
(d) The Arrangers Unless waived by the Administrative Agent, the Borrower shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions paid all fees, charges and disbursements of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or simultaneously with on the initial Credit Extensions Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Borrower closing proceedings (provided that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (Administrative Agent). Without limiting the "Historical Financial Statements"); (ii) forecasts prepared by management generality of the Borrowerprovisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term B Loan Credit Agreement (Remy International, Inc.)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent, in addition to each of the conditions set forth in Section 4.02, on or prior to April 25, 2014:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies of originals (followed promptly as soon as reasonably practicable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each GuarantyAgreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit E (the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock or other transfer powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order required to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed results of a search of the UCC filings made with respect to the Persons in the jurisdictions contemplated by the Collateral Questionnaire, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party as debtor disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements are permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order required to perfect and protect (subject to Section 4.7(b) of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that in the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect case of IP Rights) the Liens created under the Intellectual Property Security Agreement has been taken(including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) (A) a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (I) that attached thereto is a true and complete copy of each Organization Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state or jurisdiction of its organization, and a certificate as to the good standing of each Loan Party and each Company Group Party as of a recent date, from such Secretary of State, (II) that attached thereto is a true and complete copy of resolutions duly authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, (III) as to the incumbency and specimen signature of each officer executing any Loan Document and (B) a certificate of another Responsible Officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (A) above;
(v) such certificates of resolutions, manager consent or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) an favorable opinion of Weil, Gotshal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Revolving Credit lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixvii) a certificate the Closing Date Projections;
(viii) certificates attesting to the Solvency of the Loan Parties (Parties, taken as a whole) whole after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestHoldings; and
(xiiix) a Committed completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Notice or Letter of Credit ApplicationParty, as applicable, relating to the initial Credit Extensiontogether with all attachments contemplated thereby.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmentalfees required to be paid to the Lenders on or before the Closing Date, shareholder including pursuant to the Engagement Letter and material third party consents and approvals necessary in connection with the Transaction Fee Letter, shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingpaid.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Sources: Credit Agreement (NRG Yield, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as if applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselLead Arrangers:
(i) executed counterparts of this Agreement and each the Guaranty, in such number as the Administrative Agent may request;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) a security agreement, in substantially the form of Exhibit G (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein that constitute certificated securities (as defined in the UCC) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank to the extent required by the Security Agreement,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statementsstatements in form appropriate for filing, duly prepared for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of, or of arrangements reasonably satisfactory to the Administrative Agent for the completion of, all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary in order to perfect the Liens created under the Security Agreement has been taken, completed taken or otherwise provided for in a manner that arrangements reasonably satisfactory to the Administrative Agent,Agent for the completion thereof have been made (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken or will be taken promptly after the Closing Date;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an a favorable opinion of Weil, Gotshal ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇▇, special New York counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Lender, substantially in the form and substance reasonably satisfactory to the Administrative Agentof Exhibit J-1;
(viii) a favorable opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially in the form of Exhibit J-2;
(ix) a favorable opinion of general counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially in the form of Exhibit J-3;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxii) a certificate attesting to the Solvency of the Loan Parties (Borrower and its Subsidiaries, taken as a whole) , immediately after giving effect to the Transaction, from the Borrower’s chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestofficer; and
(xiixiii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid to the Administrative Agent and the Lead Arrangers on or before the Closing Date pursuant to the Engagement Letter or the Fee Letter shall have been paid in full in cashpaid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to the Closing Date and approvals necessary in connection with payable by the Loan Documents Borrower pursuant to the Engagement Letter, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18occurred on or before January 31, 2008.
(e) The Refinancing shall have been consummated or shall be consummated concurrently with the initial Credit Extension.
(f) The Lead Arrangers shall have received audited consolidated financial statements of the Borrower for the 6-month period ended May 31, 2007 (the “Interim Audited Financial Statement”), accompanied by a report and opinion of Deloitte & Touche LLP.
(g) The IPO shall have been consummated or shall be consummated concurrently with the initial Credit Extension.
(h) The Lead Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed amount, types and terms and conditions of all insurance maintained by or on behalf of the Arrangers prior to July 9, 2004 Borrower and (ii) which is its Subsidiaries are substantially consistent with the Purchase Agreement isamount, types and terms and conditions of insurance maintained by other entities engaged in each casebusinesses similar to that of the Borrower, satisfactory and the Administrative Agent shall have received an endorsement naming the Administrative Agent, on behalf of the Lenders, as an additional insured under the liability insurance policy maintained with respect to the Arrangers)assets and properties of the Loan Parties that constitute Collateral.
(i) After giving effect to the Transaction, including all Credit Extensions made in connection therewith, there shall be no Revolving Credit Loans, L/C Obligations or Swing Line Loans outstanding as of the Closing Date.
(j) The Lead Arrangers shall have received a certificate from the Borrower certifying that the Consolidated Leverage Ratio for the twelve-month period ended as of the most recently ended fiscal quarter prior to the Closing Date for which financial statements are available, and calculated on a Pro Forma Basis after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangersno greater than 3.50:1.00.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(gk) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Lead Arrangers shall have received evidence all documentation and other information reasonably requested in writing at least three Business Days prior to the Closing Date in order to allow the Lead Arrangers to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot Act. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make its initial Credit Extension hereunder the amendment and restatement of the Existing Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies or copies sent by electronic transmission (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Senior Officer of the signing Loan Party (as where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) (where applicable) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each Guarantyaffirmations to the Guaranty and the Interco Subordination Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of affirmations to the Security Agreement and the Pledge Agreement, duly executed by each Loan Party thereto, together with:
(A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and tax lien and judgment searches;
(B) to the extent not on file, completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) to the extent not on file, certificates and instruments representing the Pledged Equity Interests (as defined in the Pledge Agreement) referred to therein accompanied by undated stock powers or instruments of transfer executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(BD) copies of all necessary searches with respect to the Collateralextent not on file and required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Security Documents, all proper financing statementsinstruments, duly prepared for filing under documents and chattel paper in the Uniform Commercial Code in all jurisdictions that possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to create and perfect the Administrative Agent may deem reasonably necessary Agent’s security interest in order the Collateral;
(E) to perfect and protect the Liens created under the Security Agreementextent not on file, covering the Collateral described Qualifying Control Agreements (as defined in the Security Agreement,) satisfactory to the Administrative Agent to the extent required to be delivered pursuant to the Security Agreement; and
(CF) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has Documents have been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Senior Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Senior Officer thereof authorized to act as a Responsible Senior Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organizationorganization and, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viivi) an a favorable opinion of Weil, Gotshal ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇, P.C., counsel to the Loan Parties, addressed to each Agent and the Administrative Agent, each Lender and each Issuing Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) (A) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to the Loan Parties in form Massachusetts, and substance reasonably satisfactory (B) a favorable opinion of Cabaniss, Johnston, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇’▇▇▇▇ LLP, local counsel to the Loan Parties in Alabama, in each case addressed to the Administrative Agent, each Lender and each Issuing Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate signed by a Responsible Senior Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the 2019 Fiscal Year and on an annual basis for each Fiscal Year thereafter through the 2021 Fiscal Year;
(x) evidence that all insurance (including, if applicable, flood insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, together with the certificates of insurance and that separate endorsements naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriatean additional insured or lender loss payee, as the case may be, under each all insurance policy policies (including flood insurance policies) maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so named;Loan Parties that constitute Collateral; and
(xi) certified copies of the Purchase Agreement and all material agreementssuch other assurances, instruments and other documents delivered in connection therewith certificates, documents, consents or opinions as the Administrative Agent shall Agent, the Issuing Lenders, the Swing Line Lender or any Lender reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (iincluding one local counsel in each jurisdiction) All material consents (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) Upon the request of any Lender made at least five (5) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, such documentation and other information that is reasonably requested in connection with the Loan Documents applicable “know your customer” and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtainedanti-money-laundering rules and regulations, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the LendersAct, in each case without the approval of the Arrangers.
at least three (f3) Evidence reasonably satisfactory to the Administrative Agent that days prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and (y) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for each year commencing purposes of determining compliance with the fiscal year ending on February 28conditions specified in this Section 4.01, 2005 through the fiscal year ending on February 28each Lender that has signed this Agreement shall be deemed to have consented to, 2011 (the "Closing Date Forecasts")approved or accepted or to be satisfied with, which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower each document or other matter required thereunder to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Sanmina Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder of the Term Loans on the Closing Date is subject to satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles or.pdf files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party party thereto, each dated as of the Closing Date (as applicable)or, in the case of certificates of governmental officials or resolutions, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of (A) this Agreement Agreement, (B) the Intercompany Subordination Agreement, (C) a Guaranty from each Guarantor and each Guaranty(D) the Intercreditor Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note[Reserved];
(iii) the Security Agreement, duly executed by each Loan Party theretoParty, together with:
(A) subject to Section 6.11, certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,Agent (including, without limitation, receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements), and
(D) a Perfection Certificate duly executed by each Loan Party;
(iv) the each Intellectual Property Security Agreement, duly executed by each Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) such customary certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications (including, without limitation, OrganizationalOrganization Documents and good standing certificates) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in its jurisdiction of organizationformation;
(vii) an opinion of Weil, Gotshal ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer an opinion of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under local counsel in Ohio for the Loan Documents;Parties, addressed to each Secured Party, in form and substance reasonably satisfactory to the Administrative Agent; and
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to The Notes Refinancing shall be paid on or before consummated substantially concurrently with the Closing Date shall have been paid in full in cashinitial funding of the Term Loan.
(c) The Administrative Agent shall have received a solvency certificate from a Responsible Officer of Borrower (iafter giving effect to the Transaction) All material consents substantially in the form attached hereto as Exhibit F.
(d) Holdings, the Borrower and approvals necessary each of the Guarantors shall have provided, at least three (3) business days prior to the Closing Date, the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders in connection with the Loan Documents applicable “know your customer” and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtainedanti-money-laundering rules and regulations, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18PATRIOT Act.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation All costs, fees, expenses (it being understood including without limitation legal fees and agreed that the Purchase Documentation (iexpenses, title premiums, survey charges and recording taxes and fees) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory other compensation payable to the Arrangers), and after giving effect the Agents or the Lenders shall have been paid to the Transactionextent due (and, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary case of terms attached as Annex II expenses, invoiced three Business Days prior to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the ArrangersClosing Date).
(f) Evidence reasonably satisfactory Subject to Section 6.11, all actions necessary to establish that the Administrative Collateral Agent that prior will have (i) a perfected first priority security interest in the Term Loan Collateral and (ii) a perfected second priority security interest in the ABL Collateral (in each case, subject to or simultaneously with the initial Credit Extensions the Borrower Liens permitted under Section 7.01) shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notesbeen taken.
(g) The Arrangers and the Lenders Arranger shall have received: received (ia) audited consolidated financial statements balance sheets of the Borrower and its Subsidiaries related statements of income, changes in equity and cash flows of the Borrower for the three most recently completed fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following at least 90 days before the Closing Date and (b) unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Borrower for each year commencing with subsequent fiscal quarter after the fiscal year quarter ending on February 28December 31, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that 2013 ended at least 45 days before the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material(other than any fiscal quarter ended on December 31).
(h) The Arrangers representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of June 23the Closing Date, 2003 among Refco Group Ltd.except to the extent that such representations and warranties specifically refer to an earlier date, LLCin which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(i) No Default shall exist, as borroweror would result from such proposed Credit Extension or from the application of the proceeds therefrom.
(j) Subject to Section 6.11, JPMorgan Chase Bank, as the Administrative Agent shall have been terminated received a copy of, or a certificate as to coverage under, the insurance policies required by Section 6.07 and all amounts outstanding the applicable provisions of the Security Agreement, each of which shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) and shall name the Collateral Agent, on behalf of the Secured Parties, as additional insured, in form and substance reasonably satisfactory to the Administrative Agent.
(k) The ABL Credit Agreement shall be amended to permit the Transactions substantially concurrently with the initial funding of the Term Loans. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party on behalf of the signing Loan Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselthe Arrangers:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each GuarantyLender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes, evidencing the Committed Loans and the Term B Loans, as applicable;
(iii) a Security Agreement in form and substance reasonably satisfactory to the Security AgreementAdministrative Agent, duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect granting to the Administrative Agent, for the benefit of the Lenders, a first priority security interest in all of the Collateral (other than the Excluded Collateral, ); and the Loan Parties shall have delivered to the Administrative Agent all proper financing statements, duly prepared UCC-1s in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral (other than the Non-Perfected Collateral) described in the Security Agreement,; and
(Civ) evidence that all other actions, recordings an pledge agreement in form and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner substance reasonably satisfactory to the Administrative Agent,
Agent (iv) the Intellectual Property Security “Parent/Borrower Pledge Agreement”), duly executed by each Loan Party theretothe Parent and the Borrower granting to the Administrative Agent, together with evidence that for the benefit of the Lenders, a first priority security interest in all action that of the issued and outstanding Equity Interests of the Borrower and in the other Collateral described therein; and the Parent and the Borrower shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in its reasonable judgment blank, with respect thereto, to the extent applicable; and the Parent and the Borrower shall have taken all such other actions as may deem be reasonably necessary required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent’s security interest in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takensuch Equity Interests;
(v) an pledge agreement in form and substance reasonably satisfactory to the Administrative Agent (the “Subsidiary Pledge Agreement”), executed by each Restricted Subsidiary of the Parent and the Borrower necessary to pledge the Collateral described therein, for the benefit of the Lenders, a first priority security interest in all of the issued and outstanding Equity Interests of each Restricted Subsidiary owned by such Person; each such Restricted Subsidiary shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in blank, with respect thereto; each such Restricted Subsidiary shall have taken all actions as may be required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent’s security interest in such Equity Interests;
(vi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower, the Parent and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an a favorable opinion of Weil(i) in-house counsel, Gotshal (ii) Drinker ▇▇▇▇▇▇ and ▇▇▇▇▇ LLP and (iii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇, LLP, counsel (and FCC counsel) to the Loan Parties, each addressed to each the Administrative Agent and each Lender Lender, and each in form and substance reasonably satisfactory to the Administrative Agent;
(viiiix) a certificate signed by of a Responsible Officer of each Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so namedMaterial Adverse Effect;
(xi) certified copies a duly completed pro forma Compliance Certificate determined as of the Purchase Agreement and all material agreementslast day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating but giving pro forma effect to the initial Credit Extension, and all other incurrence and repayments of Indebtedness on the same date or prior thereto;
(xii) the substantially concurrent issuance of the Original Senior Notes in a face amount of not less than $220,000,000, and the Senior Notes Indenture and the other Senior Notes Indenture Documents shall have been entered into, and on such other terms and conditions, and pursuant to documentation, in each case acceptable to the Administrative Agent and each of the Lenders and substantially simultaneously with the execution of this Agreement;
(xiii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, (i) All material consents and approvals necessary in connection with provided that such invoice shall not thereafter preclude a final settling of accounts between the Loan Documents Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18occurred on or before December 31, 2011.
(e) The Arrangers There shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation not have occurred a material adverse change (i) reviewed by in the Arrangers prior to July 9business, 2004 assets, properties, liabilities (actual or contingent), operations or financial condition of the Parent, the Borrower and their Subsidiaries, taken as a whole, since December 31, 2010 or (ii) which is substantially consistent with in the Purchase Agreement is, in each case, satisfactory to facts and information regarding such entities as represented by the Arrangers), and after giving effect to the TransactionParent, the corporate and capital structure and equity ownership Borrower or any of Holdings and its Subsidiaries shall not differ from what is set forth in the summary their Subsidiaries, or any representatives of terms attached as Annex II any of them, to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangersdate.
(f) Evidence The absence of any action, suit, investigation or proceeding pending or, to the actual knowledge of a member of the executive management of the Parent, the Borrower or any of their Restricted Subsidiaries, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably satisfactory be expected to (i) have a material adverse effect on the business, assets, properties, liabilities (actual and contingent), operations or financial condition of the Parent, the Borrower and their Subsidiaries, taken as a whole, (ii) materially and adversely affect the ability of the Borrower or any Guarantor to perform its obligations under any material provision of the Loan Documents or (iii) materially and adversely affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that prior has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared approved by management of the Borrower, each in form reasonably or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Unless waived by all the Lenders, the Administrative Agent's Agents’ receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Agents and its their legal counsel:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agents, each Lender and each Guarantythe Borrowers;
(ii) a Note executed by the applicable Borrower in favor of each Lender requesting (whereupon each Lender under the Existing Credit Agreement shall, within a Notereasonable time, return any note executed by the Borrowers thereunder in favor of such Lender, to the applicable Borrower for cancellation);
(iii) executed counterparts of the Security AgreementSecond Amended and Restated Guaranty (Canadian Borrower Obligations), duly sufficient in number for distribution to the Administrative Agents and each Lender;
(iv) executed by counterparts of the Second Amended and Restated Guaranty (Domestic Borrower Obligations), sufficient in number for distribution to the Administrative Agents and each Loan Party theretoLender;
(v) [Intentionally Omitted];
(vi) executed counterparts of the Second Amended and Restated Pledge Agreement (Domestic Borrower and Canadian Borrower Obligations), together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated with stock powers duly executed in blank and instruments evidencing the Pledged Debt indorsed in blank,for each certificate pledged thereunder;
(Bvii) copies there shall not exist any order, decree, judgment, ruling or injunction which restrains the consummation of all necessary searches with respect any transaction contemplated hereby or any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could reasonably be expected to materially and adversely affect any Borrower and its subsidiaries, any transaction contemplated hereby or the Collateralability of any Borrower, and all proper financing statements, duly prepared for filing any of its Subsidiaries or any Guarantor to perform its obligations under the Uniform Commercial Code in all jurisdictions that Loan Documents or the Administrative Agent may deem reasonably necessary in order ability of the Lenders to perfect and protect the Liens created under the Security Agreementexercise their rights thereunder;
(viii) there shall have not occurred a material adverse change since June 30, covering the Collateral described 2009 in the Security Agreement,business, results of operations or condition (financial or otherwise) of the Borrowers and their Subsidiaries taken as a whole, or in the facts and information regarding such entities as represented to date;
(Cix) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
Agents that there shall not have occurred any adverse change since June 30, 2009 to the corporate and ownership structure (iv) including articles of incorporation and bylaws, shareholder agreements and management of the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect Borrowers and protect the Liens created under the Intellectual Property Security Agreement has been takentheir Subsidiaries);
(vx) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent Agents may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vixi) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent permitted under Section 6.05 hereof;
(viixii) an a favorable opinion of Weil, Gotshal O’Melveny & ▇▇▇▇▇, L.L.P. and Osler, ▇▇▇▇▇▇ & Harcourt LLP, counsel to the Loan Parties, addressed to each Agent the Administrative Agents and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in Exhibit I and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiixiii) a certificate of a Responsible Officer of each Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the respective Loan Parties and the validity against such Persons of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xiv) a certificate signed by a Responsible Officer of the each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxv) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the Domestic Borrower’s chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and certifying that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under Domestic Borrower and each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestits Subsidiaries are Solvent; and
(xiixvi) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agents, as applicablethe L/C Issuers, relating to the initial Credit ExtensionSwing Line Lenders or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) The Borrowers shall have paid all Attorney Costs of the Administrative Agents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (i) All material consents and approvals necessary in connection with provided that such estimate shall not thereafter preclude a final settling of accounts between the Loan Documents Borrowers, the Administrative Agents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agents’ counsel).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18occurred on or before September 30, 2009.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Original Closing Date is subject to satisfaction of the following conditions precedent:precedent (capitalized terms used in this Section 4.01 and not defined herein shall have the meaning assigned thereto in the Existing Credit Agreement) (for the avoidance of doubt, all conditions precedent in this Section 4.01 were satisfied on the Original Closing Date):
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles facsimile (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement Agreement, the completed Perfection Certificate and each the Guaranty, sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a security agreement, in substantially the form of Exhibit G to the Existing Credit Agreement (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity Securities referred to therein accompanied by undated stock powers executed in blank in the case of equity and instruments evidencing the Pledged Debt indorsed in blankblank in the case of debt,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate,
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been takenthereby,
(E) the Control Agreements (as defined in the Security Agreement), completed or otherwise provided for in a manner reasonably satisfactory each case to the extent required in the Security Agreement and duly executed by the appropriate parties,
(F) evidence that all other action that the Administrative Agent,Agent may deem necessary in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, mortgage releases and UCC-3 termination statements);
(iv) [Reserved];
(v) an intellectual property security agreement or agreements for each of copyrights, patents and trademarks, in substantially the form attached to the Security Agreement (as amended, the “Intellectual Property Security Agreement”), duly executed by each applicable Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(vvi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an opinion of Weil▇▇▇▇, Gotshal Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Lender, in form and substance reasonably satisfactory to the Administrative AgentAgent (which shall cover New York law and the General Corporation Law, Limited Liability Company Act and Revised Uniform Limited Partnership Act of Delaware);
(viiiix) an opinion of local counsel to the Loan Parties in each of Colorado, Florida and Ohio, addressed to the Administrative Agent and the Secured Parties;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxii) a certificate attesting to the Solvency of the Loan Parties (taken as Borrower and its Restricted Subsidiaries on a whole) consolidated basis before and after giving effect to the TransactionTransaction and the incurrence of Indebtedness related thereto, from the Borrower’s chief financial officer of in form and substance reasonably satisfactory to the BorrowerArrangers;
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriate, an additional insured under each all insurance policy policies maintained with respect to casualty the assets and liability insurance properties, as to which applicable, of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixiv) certified copies of evidence that the Purchase Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all material agreementsLiens securing obligations under the Existing Credit Agreement have been, instruments and or concurrently with the Closing Date are being, released; and
(xv) such other assurances, certificates or documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, in full in casheach case, to the extent invoiced.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, out-of-pocket charges and disbursements of one outside counsel and one local counsel in each relevant jurisdiction to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents and approvals necessary in connection with to the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens extent invoiced prior to or on the Collateral) Closing Date, plus such additional amounts of such reasonable and documented fees, out-of-pocket charges and disbursements as shall have been obtainedconstitute its reasonable estimate of such fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with disbursements incurred or to be incurred by it through the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, closing proceedings. Without limiting the expiration or termination generality of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers 9.03(e), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the Original Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Wendy's Co)
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make its initial Credit Extension hereunder the amendment and restatement of the Existing Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies or copies sent by electronic transmission (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Senior Officer of the signing Loan Party (as where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) (where applicable) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each Guarantyaffirmations to the Guaranty and the Interco Subordination Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of affirmations to the Security Agreement and the Pledge Agreement, duly executed by each Loan Party thereto, together with:
(A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and tax lien and judgment searches;
(B) to the extent not on file, completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) to the extent not on file, certificates and instruments representing the Pledged Equity Interests (as defined in the Pledge Agreement) referred to therein accompanied by undated stock powers or instruments of transfer executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(BD) copies of all necessary searches with respect to the Collateralextent not on file and required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Security Documents, all proper financing statementsinstruments, duly prepared for filing under documents and chattel paper in the Uniform Commercial Code in all jurisdictions that possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to create and perfect the Administrative Agent may deem reasonably necessary Agent’s security interest in order the Collateral;
(E) to perfect and protect the Liens created under the Security Agreementextent not on file, covering the Collateral described Qualifying Control Agreements (as defined in the Security Agreement,) satisfactory to the Administrative Agent to the extent required to be delivered pursuant to the Security Agreement; and
(CF) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has Documents have been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(viv) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Senior Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Senior Officer thereof authorized to act as a Responsible Senior Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organizationorganization and, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viivi) an a favorable opinion of Weil, Gotshal ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇, P.C., counsel to the Loan Parties, addressed to each Agent and the Administrative Agent, each Lender and each Issuing Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) (A) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to the Loan Parties in form Massachusetts, and substance reasonably satisfactory (B) a favorable opinion of Cabaniss, Johnston, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇’▇▇▇▇ LLP, local counsel to the Loan Parties in Alabama, in each case addressed to the Administrative Agent, each Lender and each Issuing Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate signed by a Responsible Senior Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the 2018 Fiscal Year and on an annual basis for each Fiscal Year thereafter through the 2020 Fiscal Year;
(x) evidence that all insurance (including, if applicable, flood insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, together with the certificates of insurance and that separate endorsements naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriatean additional insured or lender loss payee, as the case may be, under each all insurance policy policies (including flood insurance policies) maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so named;Loan Parties that constitute Collateral; and
(xi) certified copies of the Purchase Agreement and all material agreementssuch other assurances, instruments and other documents delivered in connection therewith certificates, documents, consents or opinions as the Administrative Agent shall Agent, the Issuing Lenders, the Swing Line Lender or any Lender reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) (i) All material consents and approvals necessary in connection with Unless waived by the Loan Documents and Administrative Agent, the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) Borrower shall have been obtainedpaid all reasonable and documented fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination disbursements of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (including one local counsel in each jurisdiction) (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or simultaneously with to be incurred by it through the initial Credit Extensions the Borrower closing proceedings (provided that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (Administrative Agent). Without limiting the "Historical Financial Statements"); (ii) forecasts prepared by management generality of the Borrowerprovisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Sanmina Corp)
Conditions of Initial Credit Extension. The obligation amendment and restatement of each Lender to make its initial the Original Credit Extension hereunder Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the signing Loan Party Party, each dated the Restatement Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement and a Lender Addendum executed and delivered by each GuarantyLender and accepted by the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the Security Agreement, duly executed by each Loan Party thereto, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements and/or amendments in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect maintain perfection of the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,;
(Civ) evidence that all other actions, recordings and filings of or with respect to the Security Agreement actions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has have been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers duly authorized officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as officer of a Responsible Officer in connection with this Agreement and Loan Party executing the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an the executed opinion of Weil, Gotshal ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and special New York counsel to the other Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties and the Loan Documents as the Administrative AgentAgent may reasonably request;
(viii) the executed opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., special Missouri counsel to the Borrower and in-house counsel to the other Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit I;
(ix) a certificate of a duly authorized officer of each Loan Party (i) either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; and (ii) stating that all consents, licenses and approvals required in connection with the consummation of such Loan Party of the Transaction has been received;
(x) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no changenot occurred since December 31, effect2009, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on change in the business, assets, operations, assets, liabilities (actual or contingent), results of operations property or condition (financial or otherwise), ) of Holdings and its Subsidiaries (including the Target Borrower and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ixxi) a certificate certificates attesting to the Solvency of the Loan Parties (taken as Borrower and its Subsidiaries on a whole) consolidated basis before and after giving effect to the Transaction, from the its chief financial officer of the Borrowerofficer;
(xxii) evidence that all insurance required to be maintained pursuant to the Loan Documents Section 6.07 has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixiii) certified copies an executed confirmation of the Purchase Agreement Subsidiary Guarantors (the “Consent of Guarantors”) in form and all material agreementssubstance reasonably satisfactory to the Administrative Agent; and
(xiv) such other assurances, instruments certificates and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(b) All The Borrower shall have received, simultaneously with the occurrence of the Restatement Date (upon the satisfaction or waiver of each other condition set forth in this Section 4.01), gross cash proceeds of not less than $150,000,000 and not greater than $300,000,000 from the issuance of the Senior Notes. The Senior Notes and the Senior Notes Indenture shall be on terms substantially similar in all material respects to those set forth in the description of Senior Notes provided to the Lenders prior to the Restatement Date or otherwise reasonably satisfactory to the Required Lenders. The Administrative Agent shall have received a copy of the Senior Notes Indenture, certified by a Responsible Officer as being complete and correct.
(c) Any fees and expenses required to be paid on or before the Closing Restatement Date to the Administrative Agent, any Arranger or the Lenders (i) pursuant to the Fee Letters or (ii) otherwise for which invoices have been received at least one Business Day prior to the Restatement Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting Administrative Agent shall have received an executed original of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination Banc of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAmerica Securities Fee Letter.
(d) The Arrangers Any principal, interest, letter of credit fees and breakage costs required to be paid on or before the Restatement Date to any lender under the Original Credit Agreement who, as of the effectiveness of this Agreement shall no longer be a lender, for which invoices have been received shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18been paid.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed Unless waived by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the TransactionAdministrative Agent, the corporate Borrower shall have paid all reasonable fees, charges and capital structure and equity ownership disbursements of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one Business Day prior to the Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or simultaneously with to be incurred by it through the initial Credit Extensions the Borrower closing and customary post-closing proceedings included in such invoices (provided, that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (Administrative Agent). Without limiting the "Historical Financial Statements"); (ii) forecasts prepared by management generality of the Borrowerprovisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Restatement Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Patriot Coal CORP)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each GuarantyLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an irrevocable proxy, pledge and security agreement, in substantially the form of Exhibit G (together with each other irrevocable proxy, pledge and security agreement and irrevocable proxy, pledge and security agreement supplement delivered pursuant to Section 6.09, in each case as amended, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock transfer powers executed in blank or, if any of the Pledged Equity shall be uncertificated securities, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Secured Parties in accordance with Section 9-106 of the Uniform Commercial Code, and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) [reserved],
(E) the Control Agreements duly executed by the appropriate parties, and
(F) evidence that all other actionsaction, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have under the Security Agreement has been takentaken (including receipt of duly executed payoff letters, completed UCC-3 termination statements and consent agreements) or otherwise provided for in a manner reasonably arrangements therefor satisfactory to the Administrative Agent,Agent shall have been made;
(iv) a first preferred fleet mortgage, in substantially the Intellectual Property Security Agreementform of Exhibit H (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering each of the Specified Rigs listed on Schedule 5.07 (together with each other mortgage and mortgage supplement or amendment delivered pursuant to Section 6.09, in each case as amended, the “Mortgages”), duly executed by each the appropriate Loan Party theretoParty, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording with the United States Coast Guard and all other filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the “vessels” described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or arrangements for such payment satisfactory to the Administrative Agent shall have been made),
(B) evidence of the insurance required by the terms of the Mortgages, and
(C) evidence that all other action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect create valid first and protect subsisting Liens on the Liens created under property described in the Intellectual Property Security Agreement Mortgages has been taken, including delivery of an abstract of title, certificate of ownership, copy of certificate of documentation, and copy of certificate of financial responsibility (for each jurisdiction where applicable) with respect to each Specified Rig;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, in substantially the form of Exhibit I-1 and each in form such other matters concerning the Loan Parties and substance the Loan Documents as the Required Lenders may reasonably satisfactory to the Administrative Agentrequest;
(viii) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., general counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in substantially the form of Exhibit I-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the most recent Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxi) copies of the Audited Financial Statements and unaudited interim consolidated financial statements of the Borrower and its consolidated Subsidiaries for each fiscal quarterly period ended subsequent to December 31, 2007 as to which such financial statements are available, accompanied by a certificate attesting of a Responsible Officer of the Borrower;
(xii) the consolidated balance sheet, and statements of earnings and cash flows of the Borrower, prepared on a pro forma basis, and projections of the revenues, expenses, and cash flows of the Borrower covering the period from the Closing Date through December 31, 2012, prepared on a quarterly basis for each fiscal year ending on December 31, 2008 and December 31, 2009 and an annual basis for each fiscal year December 31, 2010, December 31, 2011, and December 31, 2012 (the “Initial Projections”), prepared by a Responsible Officer of the Borrower having responsibility over financial matters, all in form and substance satisfactory to the Solvency Administrative Agent;
(xiii) the Initial Appraisal Report;
(xiv) if the initial Credit Extension shall be in an aggregate principal amount equal to or greater than $50,000,000, a Borrowing Base Certificate duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower relating to the initial Credit Extension;
(xv) certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(taken xvi) a duly completed Compliance Certificate as a whole) after giving effect to of the Transactionlast day of the fiscal quarter of the Borrower ended March 31, from 2008, signed by the chief financial officer of the Borrower;
(xxvii) evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all insurance Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(xviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers, or any Lender reasonably may require.
(b) The Administrative Agent, Lenders and Co-Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses required to be maintained pursuant reimbursed or paid by the Borrower hereunder (including all such reasonable fees, charges and disbursements of counsel to the Loan Documents has been obtained and is in effect and that Administrative Agent, paid directly to such counsel if requested by the Administrative Agent Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has been named as loss payee signed this Agreement shall be deemed to have consented to, approved or additional insuredaccepted or to be satisfied with, as appropriate, under each insurance policy with respect document or other matter required thereunder to casualty and liability insurance as be consented to which or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating received notice from such Lender prior to the initial Credit Extension.
(b) All fees and expenses required to be paid on or before the proposed Closing Date shall have been paid in full in cashspecifying its objection thereto.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as if applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselLead Arrangers:
(i) executed counterparts of this Agreement and each the Guaranty, in such number as the Administrative Agent may request;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) a security agreement, in substantially the form of Exhibit G (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein that constitute certificated securities (as defined in the UCC) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank to the extent required by the Security Agreement,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statementsstatements in form appropriate for filing, duly prepared for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence that of the completion of, or of arrangements reasonably satisfactory to the Administrative Agent for the completion of, all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary in order to perfect the Liens created under the Security Agreement has been taken, completed taken or otherwise provided for in a manner that arrangements reasonably satisfactory to the Administrative Agent,Agent for the completion thereof have been made (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken or will be taken promptly after the Closing Date;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an a favorable opinion of Weil, Gotshal ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇▇, special New York counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Lender, substantially in the form and substance reasonably satisfactory to the Administrative Agentof Exhibit J-1;
(viii) a favorable opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially in the form of Exhibit J-2;
(ix) a favorable opinion of general counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially in the form of Exhibit J-3;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxii) a certificate attesting to the Solvency of the Loan Parties (Borrower and its Subsidiaries, taken as a whole) , immediately after giving effect to the Transaction, from the Borrower’s chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestofficer; and
(xiixiii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid to the Administrative Agent and the Lead Arrangers on or before the Closing Date pursuant to the Engagement Letter or the Fee Letter shall have been paid in full in cashpaid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced prior to the Closing Date and approvals necessary in connection with payable by the Loan Documents Borrower pursuant to the Engagement Letter, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18occurred on or before January 31, 2008.
(e) The Refinancing shall have been consummated or shall be consummated concurrently with the initial Credit Extension.
(f) The Lead Arrangers shall have received audited consolidated financial statements of the Borrower for the 6-month period ended May 31, 2007 (the “Interim Audited Financial Statement”), accompanied by a report and opinion of Deloitte & Touche LLP.
(g) The IPO shall have been consummated or shall be consummated concurrently with the initial Credit Extension.
(h) The Lead Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed amount, types and terms and conditions of all insurance maintained by or on behalf of the Arrangers prior to July 9, 2004 Borrower and (ii) which is its Subsidiaries are substantially consistent with the Purchase Agreement isamount, types and terms and conditions of insurance maintained by other entities engaged in each casebusinesses similar to that of the Borrower, satisfactory and the Administrative Agent shall have received an endorsement naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Arrangers)assets and properties of the Loan Parties that constitute Collateral.
(i) After giving effect to the Transaction, including all Credit Extensions made in connection therewith, there shall be no Revolving Credit Loans, L/C Obligations or Swing Line Loans outstanding as of the Closing Date.
(j) The Lead Arrangers shall have received a certificate from the Borrower certifying that the Consolidated Leverage Ratio for the twelve-month period ended as of the most recently ended fiscal quarter prior to the Closing Date for which financial statements are available, and calculated on a Pro Forma Basis after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangersno greater than 3.50:1.00.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(gk) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Lead Arrangers shall have received evidence all documentation and other information reasonably requested in writing at least three Business Days prior to the Closing Date in order to allow the Lead Arrangers to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot Act. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to them that a Lender unless the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The U.S. Administrative Agent's receipt satisfaction that substantially concurrently with the initial Credit Extensions it shall receive each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable)Party, each in form and substance reasonably satisfactory to the U.S. Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the each applicable Borrower in favor of each Lender requesting a Note;
(iii) the U.S. Security Agreement, duly executed by each U.S. Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (including, without limitation, the Intercompany Note) indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the U.S. Security Agreement, covering the Collateral described in the U.S. Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the U.S. Security Agreement that the U.S. Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the U.S. Administrative Agent,Agent (including, without limitation, receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) the Canadian Security Agreement, duly executed by the Canadian Loan Parties, together with:
(A) copies of proper financing statements and/or registration forms, duly prepared for filing under the PPSA and/or registration in all jurisdictions that the Canadian Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Canadian Security Agreement and/or render such Liens opposable to third parties, covering the Collateral described in the Canadian Security Agreement and
(B) evidence that all other actions, recordings and filings of or with respect to the Canadian Security Agreement that the Canadian Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect and/or render such Liens opposable to third parties the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Canadian Administrative Agent (including, without limitation, receipt of duly executed payoff letters, PPSA termination statements and/or discharges, as applicable);
(v) the Intellectual Property Security Agreement, duly executed by each applicable U.S. Loan Party theretoParty, together with evidence that all action that the U.S. Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(vvi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent Agents may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vivii) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an opinion of Weil, Gotshal Ropes & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Agent and each Lender Lender, as to the matters set forth in Exhibit J-1, and as to such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agents shall reasonably request;
(ix) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, Canadian counsel to the Loan Parties, addressed to each Agent and each Lender, as to matters set forth in Exhibit J-2, and as to such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agents shall reasonably request;
(x) opinions of local counsel for the Loan Parties, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J-3, and as to such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agents shall reasonably request;
(xi) Mortgages encumbering the Real Properties set forth on Schedule 1.01(a) duly executed by the appropriate U.S. Loan Parties, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the U.S. Administrative Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the property described therein in favor of the U.S. Administrative Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the U.S. Administrative Agent;
(B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction (the "MORTGAGE POLICIES") in form and substance, with endorsements and in amount, reasonably acceptable to the U.S. Administrative Agent (not to exceed the value of the Real Properties covered thereby and in the case of Section 6.12(c), the value of the real property encumbered by a Mortgage shall not exceed, in each case, an amount determined in the reasonable judgment of the U.S. Administrative Agent), issued, coinsured and reinsured by title insurers reasonably acceptable to the U.S. Administrative Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, free and clear of all defects and encumbrances, subject to Liens permitted by clauses (a), (c), (d), (g), (h), (i), (j) and (v) of Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents) and such coinsurance and direct access reinsurance as the U.S. Administrative Agent may deem reasonably necessary or desirable;
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys for the real property located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Missouri, sufficient for the title company to remove the standard survey exception from the Mortgage Policy for such property and issue survey related endorsements to that Mortgage Policy;
(D) opinions of local counsel for the U.S. Loan Parties in states in which the Real Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings substantially in the form of Exhibit J-3 hereto, and otherwise in form and substance reasonably satisfactory to the U.S. Administrative Agent; and
(E) such other evidence that all other actions that the U.S. Administrative Agent may deem necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages has been taken;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ixxii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer Chief Financial Officer of the U.S. Borrower;
(xxiii) the financial statements described in Sections 5.05(a), (b) and (d);
(xiv) a certified copy of the Sponsor Management Agreement;
(xv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so namedeffect;
(xixvi) certified copies of the Purchase Agreement and Acquisition Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the U.S. Administrative Agent shall reasonably request; and;
(xiiA) copies of certificates of merger or other confirmation reasonably satisfactory to the Lenders to be filed with the Secretary of State of the State of Delaware for each Merger, (B) confirmation from the Target Company and the Company, or their respective counsel that such certificates are to be so filed immediately after such confirmation and (C) on the Closing Date, but after the consummation of the Transaction, certified copies of such certificates of the consummation of the First Merger and the Second Merger from the Secretary of State of the State of Delaware;
(xviii) an assumption agreement in substantially the form of Exhibit K hereto (the "ASSUMPTION AGREEMENT"), duly executed by the Surviving Corporation in connection with the Mergers;
(xix) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension; and
(xx) such other assurances, certificates, documents, consents or opinions as the U.S. Administrative Agent reasonably may require.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of any Loan Party or any of its Subsidiaries, threatened before any Governmental Authority or arbitrator that would be reasonably likely to have a Material Adverse Effect.
(id) All material consents governmental authorizations and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the U.S. Administrative Agent) and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority Governmental Authority (including, without limitation, the expiration of the requisite waiting period under the ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1975), and no Law shall be applicable in the reasonable judgment of the U.S. Administrative Agent, in each case that could restrainrestrains, prevent prevents or impose any material imposes materially adverse conditions on any of upon the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18Transaction.
(e) No changes, occurrences or developments shall have occurred, and no information shall have been received or discovered by the Administrative Agent that, either individually or in the aggregate, could reasonably be expected to (1) have (or have had) a material adverse effect on the condition (financial or otherwise), business, operations, assets or liabilities of the Consolidated Parties, taken as a whole, (2) adversely affect (or has adversely affected) the ability of the Borrowers or any Guarantor to perform its obligations under any of the Loan Documents or (3) adversely affect (or has adversely affected) the rights and remedies of the Lenders under the applicable Loan Documents.
(f) The Arrangers and the U.S. Administrative Agent shall have reviewed, and be reasonably satisfied with, the final terms and conditions of the Acquisition Documents. Each of the Acquisition Documents shall be in full force and effect. The U.S. Administrative Agent shall be reasonably satisfied with (A) any amendments, modification and supplements to the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9Acquisition Documents, 2004 and (iiB) which is substantially consistent all agreements, instruments and documents relating to each other aspect of the Transaction.
(g) Substantially simultaneously with the Purchase Agreement isinitial Credit Extension, the Equity Contributions and the Acquisition shall be consummated in each caseaccordance with the terms of the Acquisition Agreement, without any waiver or amendment not reasonably satisfactory to the Arrangers)U.S. Administrative Agent, and in compliance with all applicable requirements of Law and, after giving effect to the Transaction, at least 23% of the corporate and capital structure and equity ownership consolidated capitalization of Holdings and its Subsidiaries shall not differ from what is set forth be in the summary form of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangerscommon Equity Interests.
(fh) Evidence reasonably satisfactory The Administrative Agents shall be satisfied with arrangements for the First Merger and the Second Merger to be consummated immediately following the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Acquisition.
(i) The U.S. Borrower shall have received at least $600,000,000 625,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(gj) The Arrangers U.S. Administrative Agent shall be satisfied with the arrangements for all of the Existing Notes tendered and not validly withdrawn pursuant to the Existing Notes Tender Offer to be accepted for purchase in accordance with the Existing Notes Tender Documents on the Closing Date. Pursuant to the Existing Notes Tender Offer, the Target Company and Nortek, Inc. shall have received consents which shall not have been validly withdrawn and for which all rights of withdrawal have expired, from holders of a majority of each series of the Existing Notes to enter into the supplemental indentures to each of the Existing Notes Indentures contemplated by clause (c) of the definition of "Existing Notes Tender Documents" and such supplemental indentures shall have been entered into by the Target Company and Nortek, Inc., as applicable, and the Lenders shall have received: (i) audited consolidated financial statements applicable trustee. The aggregate amount of the Borrower Commitments, the Senior Subordinated Notes and its Subsidiaries for the fiscal years ended February 28Existing Notes (based on principal amount at maturity, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements extent applicable) which have not been purchased or called for each quarter for the first four quarters following redemption on the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be materialnot exceed $1,441,000,000.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.
Appears in 1 contract
Sources: Credit Agreement (Nortek Inc)
Conditions of Initial Credit Extension. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) a. The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselthe Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the Pledge and Security Agreement, duly executed by each the Loan Party theretoParties, together with:
(A) certificates representing the Pledged Equity referred Interests of any Domestic Subsidiary pledged pursuant to therein the Pledge and Security Agreement (to the extent such Equity Interests are certificated) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(C) lien search results, dated as of a recent date prior to the initial Credit Extensions, together with copies of all effective Uniform Commercial Code financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, and
(D) evidence that of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,thereby;
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of Weil▇▇▇▇▇▇, Gotshal ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) financial projections and forecasts prepared by management of the Borrower and reasonably satisfactory to the Administrative Agent, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries for the five year term of the Facilities;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixx) a certificate attesting to the Solvency duly completed Compliance Certificate as of the Loan Parties last day of the fiscal quarter of Equinix ended on September 30, 2014 (taken as provided that the calculation of the Consolidated Net Lease Adjusted Leverage Ratio shall be on a whole) pro forma basis after giving effect to (A) the TransactionIndebtedness incurred (x) hereunder and the use of proceeds thereof on the Closing Date and (y) pursuant to the 5.375% Senior Notes Due 2022 and the 5.750% Senior Notes Due 2025 and (B) the redemption of the 7.00% Senior Notes Due 2021)), from the chief financial officer signed by a Responsible Officer of the Borrower;
(xxi) pay-off statements and/or lien release authorizations from (A) the Existing Administrative Agent with respect to interest, fees and expenses under the Existing Credit Agreement and other Existing Loan Documents, and (B) such other secured parties of record shown on any of the financing statements referred to in subclause (iii)(C) above, to the extent such financing statements disclose Liens on the Collateral;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requesteffect; and
(xiixiii) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as the Administrative Agent, as applicable, relating to the initial Credit ExtensionL/C Issuer or the Required Lenders reasonably may require.
(b) All b. Any fees and expenses required to be paid to the Administrative Agent, the Left Lead Arranger or the Lenders on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtainedpaid, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified fees to Lenders as shall have been separately agreed upon in writing in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction amounts so specified.
c. The Borrower shall have expired without any action being taken by any authority that could restrainpaid all reasonable fees, prevent or impose any material adverse conditions on any charges and disbursements of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or simultaneously with to be incurred by it through the initial Credit Extensions the Borrower closing proceedings (provided that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February Administrative Agent).
d. The Closing Date shall have occurred on or before December 29, 2004 (2014. Without limiting the "Historical Financial Statements"); (ii) forecasts prepared by management generality of the Borrowerprovisions of the lastpenultimate paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Equinix Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each GuarantyLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Intercreditor Agreement, duly executed by each of the parties thereto;
(iv) the Security Agreement, duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code UCC in all jurisdictions that the Administrative Agent may deem necessary or reasonably necessary desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(B) UCC and Lien searches and other evidence satisfactory to the Administrative Agent that Liens in favor of the Administrative Agent are the only Liens upon the Collateral, except Liens permitted under Section 7.01,
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentthereby,
(ivD) the Intellectual Property Account Control Agreements (as defined in the Security Agreement, ) required pursuant to the Security Agreement and duly executed by each Loan Party theretothe appropriate parties, together with and
(E) evidence that all other action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an a favorable written opinion of Weil▇▇▇▇▇▇, Gotshal ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel LLP addressed to the Loan Parties, addressed to each Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative AgentAgent may reasonably request;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected to the conditions specified in Sections 4.02(a) and (1b) have a material adverse been satisfied, (B) that, after giving effect to the issuance or deemed issuance of any Letters of Credit on the businessClosing Date, operationsany additional Credit Extension on the Closing Date, assetsthe payment by the Borrower of all fees and expenses due hereunder and all payments due on the Closing Date, liabilities Revolving Credit Usage shall not exceed $20,000,000, and (actual or contingent), results of operations or condition (financial or otherwise), of Holdings C) that attached to such certificate are true and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies correct calculations evidencing satisfaction of the Lenders under the Loan Documentsconditions described in clause (B) above;
(ix) a Borrowing Base Certificate as of March 31, 2019;
(x) a financial forecast of Parent and its Subsidiaries on a consolidated basis prepared by management of Parent, including consolidated balance sheets and statements of income or operations and cash flows of Parent and its Subsidiaries on a quarterly basis for each of Parent’s fiscal years 2019 through and including 2024;
(xi) for the month ended March 31, 2019, a consolidated balance sheet of Parent and its Subsidiaries as at the end of such month, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such month, all in reasonable detail, certified by a Financial Officer of Parent as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(xii) a certificate from the Borrower attesting to the Solvency of the each Material Loan Parties (taken as a whole) Party before and after giving effect to entering into this Agreement and any repayment or incurrence of Indebtedness on the TransactionClosing Date and the payment of fees and expenses in connection therewith, from the its chief financial officer of the Borrowerofficer;
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, and that endorsements naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitute Collateral;
(xixiv) certified copies duly executed payoff letters with respect to the existing indebtedness under each of the Purchase Agreement first lien credit agreement and the second lien credit agreement, together with all material agreements, related release instruments and other documents delivered attachments thereto, in connection therewith as each case in form and substance reasonably satisfactory to the Administrative Agent shall reasonably requestAgent;
(xv) [Reserved]; and
(xiixvi) if applicable, a Committed Loan Notice or duly executed Letter of Credit ApplicationApplication for each Letter of Credit requested to be issued on the Closing Date, together with all other documents and information pertaining to such requested Letter of Credit issuance as applicable, relating to the initial Credit ExtensionL/C Issuer or the Administrative Agent may reasonably require.
(bi) All fees and expenses required to be paid to the Administrative Agent and any L/C Issuer on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Administrative Agent on behalf of the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced two days prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18[reserved].
(e) The Arrangers All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents to which it is a party shall be reasonably satisfied with the Purchase Documentation (it being understood in full force and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangerseffect.
(f) Evidence reasonably The Borrower shall have provided, in form and substance satisfactory to the Administrative Agent that prior to and each Lender, all documentation and other information as the Administrative Agent or simultaneously any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the initial Credit Extensions Patriot Act and Beneficial Ownership Regulation. If the Borrower or any other Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have received at least $600,000,000 in gross cash proceeds from deliver a Beneficial Ownership Certification to the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers Administrative Agent and the Lenders shall have received: (i) audited consolidated financial statements upon request. Without limiting the generality of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management provisions of the Borrowerlast paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Co-Administrative Agent's Agents’ receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the each Co-Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Domestic Subsidiary Guarantee, sufficient in number for distribution to each GuarantyCo-Administrative Agent, each Lender and the Company;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a NoteNotes;
(iii) the Security Agreement, each other Loan Document duly executed by each Loan Party theretoParty, together with:
(A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described therein,
(B) evidence of the completion and/or preparation of all other actions, recordings and filings of or with respect to the Collateral Documents that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created thereby (including receipt of duly executed payoff letters and UCC-3 termination statements), and
(C) certificates representing the Pledged Equity referred to therein Stock Collateral accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,.
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the each Co-Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viv) such documents and certifications as the each Co-Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Company and each other Loan Party is validly existing, in good standing (where such concept is applicable) and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viivi) an a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Collateral Agent, the Administrator, each Co-Administrative Agent and each Lender and each Lender, in form and substance reasonably satisfactory to such addressees, and as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vii) a favorable opinion of Eversheds LLP, local counsel to Kaman UK Holdings Limited in the United Kingdom, addressed to the Collateral Agent, the Administrator, each Co-Administrative AgentAgent and each Lender, in form and substance reasonably satisfactory to such addressees, and as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of Ms. ▇▇▇▇▇▇▇ ▇▇▇▇▇, in-house counsel to the Loan Parties, addressed to the Collateral Agent, the Administrator, each Co-Administrative Agent and each Lender, in form and substance reasonably satisfactory to such addressees, and as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxi) a certificate attesting to the Solvency of the Company, individually, and the Loan Parties (Parties, taken as a whole) , on a consolidated basis, in each case before and after giving effect to the Transactioninitial Credit Extension, from the Company’s chief financial officer of the Borrowerofficer;
(xxii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect effect, together with the certificates of insurance and that corresponding endorsements, naming the Administrative Agent has been named as loss payee or additional insuredCollateral Agent, on behalf of the Secured Parties, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitute Collateral;
(xixiii) certified copies of evidence that the Purchase Term Loan Credit Agreement has been or concurrently with the Closing Date is being amended on terms satisfactory to the Co-Administrative Agents, the Lenders and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestBorrowers;
(xiv) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated; and
(xiixv) a Committed Loan Notice such other assurances, certificates, documents, consents or Letter of Credit Applicationopinions as any Co-Administrative Agent, as applicablethe Administrator, relating to the initial Credit ExtensionCollateral Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) All Any fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) (i) All material consents The Company shall have paid all fees, charges and approvals necessary in connection with disbursements of counsel to each Co-Administrative Agent, the Loan Documents Co-Lead Arrangers and the transactions contemplated thereby Syndication Agent (including without limitation directly to such counsel if requested by the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitationCo-Administrative Agents, the expiration or termination of the requisite waiting period under the ▇▇▇▇Co-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, Lead Arrangers and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition Syndication Agent) to the consummation extent invoiced prior to, or on, the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred, or to be incurred, by it through the Transaction) in connection with closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Transaction shall have expired without any action being taken by any authority that could restrainCompany and the Co-Administrative Agents, prevent or impose any material adverse conditions on any of the Loan Parties or Co-Lead Arrangers and the Transaction or that could seek or threaten any of the foregoingSyndication Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that occurred on or before September 30, 2009. Without limiting the Company shall comply with generality of the provisions of the last paragraph of Section 6.18.
(e) The Arrangers 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in Lender unless each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Co-Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The Unless otherwise agreed to by the Administrative Agent in writing, the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Funding Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Funding Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Funding Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrowers;
(ii) a Note duly executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) the Security Agreement, duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the date of the initial Credit Extension, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenthereby, completed or otherwise provided for in a manner reasonably satisfactory to and
(D) evidence that all other action that the Administrative Agent,Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ consent agreements);
(iv) a Committed Loan Notice appropriately completed and signed by a Responsible Officer of the Intellectual Property Security Borrowers, in respect of the initial Borrowing of the Term Loan as a single Eurodollar Rate Loan;
(v) copies certified by a Responsible Officer of the Borrowers of each of the Subordinated Debt Documents (other than the Subordinated Credit Agreement), duly executed by the parties thereto;
(vi) a copy certified by a Responsible Officer of the Borrowers of the Administrative Services Agreement, duly executed by each Loan Party theretothe parties thereto and certifying that there has been no amendment to, together with evidence that all action that or modification of, the form of Administrative Services Agreement delivered to the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect on the Liens created under the Intellectual Property Security Agreement Closing Date, unless such amendment or modification has been takenapproved by the Administrative Agent;
(vvii) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, including certified copies of Organization Documents certified by the applicable secretary of state of such jurisdiction of organization and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiix) an a favorable opinion of Weil, Gotshal & P▇▇▇▇ C▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & F▇▇▇▇ LLP, counsel to the Borrowers and the Designated Guarantors addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit I-1 and such other matters concerning the Loan PartiesParties and the Loan Documents as the Required Lenders may reasonably request;
(x) favorable opinions of local counsel to the Borrowers and the Designated Guarantors in each of Arizona, California, Nevada and New Mexico, addressed to each the Administrative Agent and each Lender Lender, as to certain matters set forth in Exhibit I-2 and each in form such other matters concerning the Loan Parties and substance the Loan Documents as the Required Lenders may reasonably satisfactory to the Administrative Agentrequest;
(viiixi) a copy certified by a Responsible Officer of the Borrowers of each Lease in effect on the Funding Date with respect to any Restaurant (other than Excluded Restaurants);
(xii) a copy certified by a Responsible Officer of the Borrowers of each Franchise Agreement with respect to any Restaurant (other than the Excluded Restaurants);
(xiii) evidence (A) of the consent and approval by the Franchisor of the transactions contemplated by this Agreement and the other Loan Documents and the Liens in favor of the Administrative Agent pursuant to the Loan Documents, or (B) that such consents and approvals are not required;
(xiv) with respect to each Restaurant (other than any Excluded Restaurant) that is ground leased or Space Leased by any Loan Party, those Mortgages, Ground Leased Real Estate Support Documents or Space Leased Real Estate Support Documents, as applicable, as set forth on Schedule 4.02;
(xv) [Intentionally Omitted.]
(xvi) a certificate of a Responsible Officer of each Loan Party (A) attaching copies of the consent relating to the Orleans Restaurant required in connection with the Transaction, which consent shall be in full force and effect, or (B) stating that no other consents or approvals are required (other than the Change of Control of Ownership Interests and as to the Flagstaff Unit Location 2093) in connection with the Transaction;
(xvii) a certificate signed by a Responsible Officer of the Borrower Borrowers certifying that (A) the conditions specified in Sections 4.03(a) and (b) have been satisfied, (B) there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have a material adverse effect on change in the business, operations, assets, liabilities (actual or contingent), results of operations or financial condition (financial of the Parent, the Company or otherwise), of Holdings Main Street and its Subsidiaries (including the Target and its Subsidiaries)Designated Guarantors, taken as a whole, either alone or in combination, or the ability of the parties to consummate the Acquisition or Merger, other than a change or effect (x) resulting from a change in general economic conditions or a change in the securities markets in general, (y) resulting from a change affecting the restaurant industry generally that does not affect the Parent, the Company or Main Street to a materially disproportionate degree from other entities operating in such industry or (2z) adversely affect resulting primarily from the rights and remedies announcement or pendency of the Lenders under Acquisition or Merger and (C) there has been no material adverse change to the Loan Documentsfinancial statements delivered on the Closing Date pursuant to Section 4.01(a)(iv);
(ixxviii) a certificate duly executed by the chief financial officer of the Borrowers (A) attesting to the Solvency of the each Loan Parties (taken as a whole) Party before and after giving effect to the Transaction, from (B) demonstrating in reasonable detail that all costs and expenses incurred in connection with the chief financial officer Transaction and the Acquisition shall be paid on the Funding Date, and (C) attesting that all trade payables and other expenses and liabilities of Main Street have been or are being paid in the Borrowerordinary course of business consistent with the past practices and in any event are deemed current under the trade terms received by Main Street;
(xxix) a duly completed Compliance Certificate, executed by a Responsible Officer of the Borrowers, showing to the reasonable satisfaction of the Administrative Agent and the Lenders that, after giving pro forma effect to the completion of the Acquisition, the Merger, the Equity Investment, the Transaction and the making of the Loans on the Funding Date that the Borrowers are in compliance, on a Pro Forma Basis, with all of the financial covenants set forth in Section 7.11.
(xx) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedLoan Parties that constitutes Collateral;
(xixxi) an executed counterpart of this Agreement executed by Main Street or a written acknowledgement from Main Street and the Parent that the Borrower Assumption and Assignment shall become effective immediately after the consummation of the Acquisition on the Funding Date;
(xxii) a copy of the Certificate of Merger precleared with the Secretary of State of the State of Delaware;
(xxiii) evidence that (A) the Main Street Credit Agreement, (B) the CNL Facility and (C) the GMAC Facility, have been, or concurrently with the Funding Date are being, terminated and all Liens securing obligations under each respective agreement have been, or concurrently with the Funding Date are being, released and (D) the cancellation of the promissory note issued by the Company for partial payment of the Top-Up Shares (as defined in the Merger Agreement) (which cancellation may occur by operation of Law) and the release of the related guaranty of the Parent shall have occurred;
(xxiv) such other assurances, certificates, documents or consents as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require; and
(xxv) certified copies of the Purchase Agreement and all material agreements, instruments each written employment agreement and other documents delivered in connection therewith compensation arrangement with each executive officer of any Loan Party as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.;
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of the Security Agreement, duly executed by sufficient in number for distribution to the Administrative Agent, each Loan Party theretoLender and the Borrower, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed proper Financing Statements in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name the Borrower as debtor, together with copies of such other financing statements,
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall thereby, and
(D) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the form of Exhibit H (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the Mortgaged Property (together with the Assignments of Leases and Rents referred to therein, the “Mortgage”), duly executed by the Borrower, together with:
(A) evidence that counterparts of the Mortgage have been takenduly executed, completed acknowledged and delivered and are in form suitable for filing or otherwise provided recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and coverage in an amount equal to the original principal amount of the Term Loan (i.e., $6,000,000), issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(ivD) evidence of the insurance required by the terms of the Mortgage,
(E) an appraisal of the Mortgaged Property, which appraisal shall comply with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, which appraisal shall be from a Person acceptable to the Administrative Agent,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken; and
(I) an environmental assessment report from an environmental consulting firm, and in form and substance, acceptable to the Administrative Agent;
(v) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party theretothe Borrower, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(vvi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party or is to be a party;
(vivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the State of Delaware, the Commonwealth of Massachusetts, the State of Maine and each other jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an a favorable opinion of Weil▇▇▇▇▇▇▇ Procter LLP, Gotshal & counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Maine real estate counsel to the Loan PartiesBorrower, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in Exhibit J-2 and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(viiix) a certificate of a Responsible Officer of the Borrower stating that no consents, licenses or approvals are required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxii) a certificate certificates attesting to the Solvency of the Loan Parties (taken Borrower as a whole) after giving effect to of the TransactionClosing Date, from the its chief financial officer of the Borrowerofficer;
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which properties of the Administrative Agent shall have requested to be so namedBorrower and its Subsidiaries that constitutes Collateral;
(xixiv) certified copies of evidence, including, without limitation, payoff letters and UCC termination statements, that the Purchase Agreement Borrower’s financing arrangements with Silicon Valley Bank have been, or concurrently with the Closing Date are being, terminated and all material agreementsLiens securing obligations under such financing arrangements have been, instruments and or concurrently with the Closing Date are being, released; and
(xv) such other documents delivered in connection therewith assurances, certificates, documents, consents or opinions as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionmay require.
(b) All fees and expenses required to be paid on or before the Closing Date The Administrative Agent shall have been paid in full in cashreceived all requested due diligence materials.
(c) The Administrative Agent shall be satisfied that no adverse Change in Law affecting the Borrower, the Administrative Agent or the Lenders shall have occurred that (i) All material consents and approvals necessary in connection with would adversely affect the Loan Documents and the transactions contemplated thereby (including without limitation the granting ability of the Liens on Borrower to conduct their business or any business substantially related to or incidental thereto in substantially the Collateral) shall same manner as they have been obtaineddone so prior to the date hereof, and or (ii) all material governmentalin the reasonable opinion of the Administrative Agent or any Lender would make it illegal for the Administrative Agent or any such Lender to make Loans or to participate in the issuance, shareholder and material third party consents and approvals necessary extension or renewal of Letters of Credit or in connection with the Transaction reasonable opinion of the L/C Issuer would make it illegal for the L/C Issuer to issue, extend or renew such Letters of Credit.
(d) On or before the Closing Date, the Borrower shall have been obtained and shall remain in effect; paid (i) all applicable waiting periods fees required to be paid to the Administrative Agent (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975all appraisal fees and field exam fees), and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory all fees required to be paid to the Arrangers)Lenders and (iii) unless waived by the Administrative Agent, all fees, charges and after giving effect to the Transaction, the corporate and capital structure and equity ownership disbursements of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or simultaneously with on the initial Credit Extensions Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Borrower closing proceedings (provided that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (Administrative Agent). Without limiting the "Historical Financial Statements"); (ii) forecasts prepared by management generality of the Borrowerprovisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Athenahealth Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension on the Restatement Date hereunder is subject to satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Restatement Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantythe Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, provided that the Borrower receives a request for any such Note at least two Business Days prior to the Restatement Date;
(iii) a master reaffirmation agreement (the Security “Reaffirmation Agreement”), duly executed by each Loan Party, pursuant to which, among other things, each Loan Party theretoreaffirms its obligations under the Guaranty and Collateral Documents, together with:with (to the extent not previously delivered to the Administrative Agent):
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,;
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have thereby; and
(D) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken, completed or otherwise provided for in a manner reasonably satisfactory taken (including receipt of duly executed payoff letters and UCC-3 termination statements).
(iv) an amendment to the Mortgage covering the property listed on Schedule 1.01(a);
(v) to the extent not previously delivered to the Administrative Agent,
(iv) the , an Intellectual Property Security Agreement, duly executed by each Loan Party theretoowning any Intellectual Property Collateral (as defined in the Security Agreement), together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the such Intellectual Property Security Agreement has been taken;
(vvi) an amendment to the ABL Credit Agreement, duly executed by the Borrower, the other borrowers party thereto, the requisite lenders party thereto, and the ABL Agent, pursuant to which, among other things, the Transactions are permitted;
(vii) an amendment to, and reaffirmation of, the Intercreditor Agreement, duly executed by the Borrower, the other Loan Parties party thereto, the Administrative Agent and the ABL Agent;
(viii) the charter document of each Loan Party, certified as of a recent date prior to the Restatement Date by the Secretary of State (or comparable official) of such Loan Party's jurisdiction of incorporation;
(ix) a certificate of the Secretary or an Assistant Secretary or Responsible Officer of each Loan Party, dated the Restatement Date, certifying (A) that attached thereto are true and correct copies of the Organization Documents of such Loan Party; and (B) that there are no proceedings for the dissolution or liquidation of such Loan Party;
(x) such customary certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vixi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viixii) an a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender Lender, and covering such matters concerning the Loan Parties, the Loan Documents and the Transactions as the Required Lenders may reasonably request;
(xiii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ Traurig, LLP, local counsel to the Loan Parties in Delaware, a favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, local counsel to the Loan Parties in Virginia, a favorable opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an in-house counsel of the Borrower, with respect to certain matters under the Indiana law, each in form and substance reasonably satisfactory addressed to the Administrative AgentAgent and each Lender, and covering such other matters concerning the Loan Parties, the Loan Documents and the Transactions as the Required Lenders may reasonably request;
(viiixiv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (1C) have the current Debt Ratings;
(xv) a material adverse effect on business plan and budget of the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings Borrower and its Subsidiaries (on a consolidated basis, including forecasts prepared by management of the Target Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the first year following the Restatement Date;
(xvi) certificates attesting to the Solvency of the Borrower and its Material Subsidiaries), taken as a whole, or (2) adversely affect the rights before and remedies of the Lenders under the Loan Documents;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;
(xxvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that effect, together with the certificates of insurance, naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, under each all insurance policy policies maintained with respect to casualty the assets and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any properties of the Loan Parties or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in full.constitutes Collateral;
Appears in 1 contract
Sources: Term B Loan Credit Agreement (Fidelity National Financial, Inc.)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent:, in addition to each of the conditions set forth in Section 4.02, on or prior to April 25, 2014 (it being acknowledged that such conditions precedents were satisfied or waived as of April 25, 2014):
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies of originals (followed promptly as soon as reasonably practicable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each GuarantyAgreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit E (the “Security Agreement”), duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock or other transfer powers executed in blank and instruments evidencing the Pledged Debt indorsed endorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary in order required to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed results of a search of the UCC filings made with respect to the Persons in the jurisdictions contemplated by the Collateral Questionnaire, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party as debtor disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements are permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order required to perfect and protect (subject to Section 4.7(b) of the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by each Loan Party thereto, together with evidence that all action that in the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect case of IP Rights) the Liens created under the Intellectual Property Security Agreement has been taken(including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) (A) a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (I) that attached thereto is a true and complete copy of each Organization Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state or jurisdiction of its organization, and a certificate as to the good standing of each Loan Party and each Company Group Party as of a recent date, from such Secretary of State, (II) that attached thereto is a true and complete copy of resolutions duly authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, (III) as to the incumbency and specimen signature of each officer executing any Loan Document and (B) a certificate of another Responsible Officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (A) above;
(v) such certificates of resolutions, manager consent or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) an favorable opinion of Weil, Gotshal & K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each Revolving Credit lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viiivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixvii) a certificate the Closing Date Projections;
(viii) certificates attesting to the Solvency of the Loan Parties (Parties, taken as a whole) whole after giving effect to the Transaction, from the chief financial officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably requestHoldings; and
(xiiix) a Committed completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Notice or Letter of Credit ApplicationParty, as applicable, relating to the initial Credit Extensiontogether with all attachments contemplated thereby.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date, including pursuant to the Engagement Letter and the Fee Letter, shall have been paid.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) The Borrower shall have been obtainedpaid all reasonable and documented fees, charges and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination disbursements of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition counsel to the consummation of Administrative Agent directly to such counsel to the Transaction) in connection with extent invoiced within two Business Days prior to the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingClosing Date.
(d) The Arrangers At least three (3) Business Days prior to the Closing Date, the Lenders shall have received evidence reasonably satisfactory all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to them Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”) that has been requested at least ten (10) days prior to the Company shall comply with the provisions of Section 6.18Closing Date.
(e) The Administrative Agent and the Arrangers shall be reasonably satisfied with have received from Parent the Purchase Documentation Audited Financial Statements referred to in Section 5.05(a) and the unaudited financial statements referred to in Section 5.05(b) (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent audited financial statements filed on Form 10-K with the Purchase Agreement is, in each case, satisfactory to SEC shall satisfy the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is condition set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangersthis clause (e)).
(f) Evidence No event, circumstance or change shall have occurred since the date of the Audited Financial Statements that has resulted, or could reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect or a material adverse change in, or material adverse effect upon, the operations, business, properties, liabilities or financial condition of the Project Companies taken as a whole. Without limiting the generality of the provisions of clause (f) of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement and each Guarantythe Guaranties;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) executed counterparts of the Security Agreement, duly executed by each Loan Party theretoPledge Agreements, together with:
(A) certificates representing the Pledged Equity Interests referred to therein accompanied by by, in the case of the Swiss Pledge Agreement, an original share certificate duly endorsed in blank, and in the case of the Domestic Pledge Agreement, undated stock powers executed in blank blank, and instruments evidencing in the Pledged Debt indorsed in case of the U.K. Pledge Agreement, blank, undated but executed stock transfer forms,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared statements (or such other appropriate instruments) in form appropriate for filing under the Uniform Commercial Code in (or such other appropriate statutes) of all jurisdictions that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security AgreementPledge Agreements, covering the Collateral described in the Security Domestic Pledge Agreement,
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Pledge Agreements that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentthereby,
(ivD) completed requests for information, dated on or before the Intellectual Property Security Agreementdate of the initial Credit Extension, duly executed by each Loan Party theretolisting all effective financing statements filed in the jurisdictions referred to in clause (B) above that name the Company or any Domestic Subsidiary as debtor, together with copies of such other financing statements, and
(E) evidence that all other action that the Administrative Agent in its reasonable judgment may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Intellectual Property Security Domestic Pledge Agreement has been takentaken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iv) reserved;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Borrower and Guarantor is validly existing, in good standing and qualified to engage in business in its jurisdiction of organizationincorporation, including, in respect of Kofax Switzerland, a copy of minutes of a meeting, or circular resolutions, of the board of directors of Kofax Switzerland, approving the Loan Documents to which it is a party;
(vii) an opinion favorable opinions of WeilDechert LLP, Gotshal special U.S. and U.K. counsel to the Loan Parties, Bär & ▇▇▇▇▇▇ LLP▇▇, special Swiss counsel to the Loan Parties, and Pestalozzi Attorneys at Law Ltd., special Swiss counsel to the Administrative Agent, addressed to the Administrative Agent, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Agent Loan Party either (A) attaching copies of all consents, licenses and each Lender approvals required in connection with the execution, delivery and each performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in form full force and substance effect, including, in respect of Kofax Switzerland, (w) a certified copy of an extract from the competent commercial register pertaining to it, (x) a certified copy of its articles of association (Statuten) duly amended to reflect the removal of restrictions on the transfer of shares (if any) and (y) a certified copy of an extract from the competent debt collection and bankruptcy office pertaining to it reasonably satisfactory to the Administrative Agent, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could would be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan Documents;
(ix) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the Borrower;Material Adverse Effect; and
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensioneffect.
(b) All Any fees and expenses (including any fees then owing under the Fee Letter) required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (idirectly to such counsel if requested by the Administrative Agent) All material consents to the extent invoiced reasonably prior to the Closing Date, plus such additional amounts of such fees, charges and approvals necessary in connection with disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Loan Documents closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoingAdministrative Agent).
(d) The Arrangers Closing Date shall have received evidence reasonably satisfactory to them that occurred on or before August 31, 2011. Without limiting the Company shall comply with generality of the provisions of the last paragraph of Section 6.18.
(e) The Arrangers 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be reasonably deemed to have consented to, approved or accepted or to be satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed with, each document or other matter required thereunder to be consented to or approved by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, or acceptable or satisfactory to a Lender unless the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Kofax LTD)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals originals, or electronic copies or facsimiles (followed promptly by originals) originals (unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each Guaranty;
(ii) a Note executed by the each Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement, duly executed by Solutions and each of its Restricted Subsidiaries that is a Loan Party thereto, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent,
(iv) the Intellectual Property Security Agreement, duly executed by Solutions and each of its Restricted Subsidiaries that is a Loan Party theretoParty, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each 72 Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) an opinion of Weil, Gotshal Foley & ▇▇▇▇▇▇ Lardner LLP, counsel to the Loan Parties, addressed to each Agent and each e▇▇▇ ▇gen▇ ▇▇▇ ▇ach Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Borrower Borrowers certifying that there has been no change, effect, event, occurrence or state of facts since February 29, 2004, that has had or could reasonably be expected as to (1) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies satisfaction of the Lenders under conditions set forth in Section 4.02(a) (other than with respect to the Loan Documentsrepresentation and warranty in Section 5.05(b)) and Section 4.02(b);
(ix) a certificate attesting to the Solvency of the Loan Parties and the Restricted Subsidiaries (taken as a whole) after giving effect to the Transaction, from the chief financial officer of the BorrowerHoldings;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named;
(xi) certified copies of the Purchase Agreement and all other material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension.
(b) All The Borrowers are in compliance with the Fee Letter and all fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash.
(c) (i) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and .
(iid) all All material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, including the expiration or termination of the requisite waiting period under the ▇▇▇▇Hart-▇▇▇▇▇- ▇▇▇▇▇▇ Scott-Rodino Antitrust Improvements Act of 1975, and the approval or consent of any approva▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ny applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties Fidelity Companies or the Transaction or that could seek or threaten any of the foregoing.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18.
(e) The Arrangers Transactions (other than the repayment of the FNF Note) shall simultaneously be reasonably satisfied consummated in accordance with applicable law and the terms of the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the ArrangersAgreement.
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: :
(iA) audited consolidated combined financial statements of the Borrower Holdings and its Subsidiaries for the fiscal years ended February 28December 31, 2002 and December 31, 2003 and February 29(B) unaudited consolidated combined financial statements of the Fidelity Companies for each of the quarterly periods ending March 31, 2004, June 30, 2004 and September 30, 2004 (the "Historical Financial StatementsHISTORICAL FINANCIAL STATEMENTS"); and
(ii) forecasts prepared by management of the BorrowerHoldings, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28December 31, 2005 2003 through the fiscal year ending on February 28December 31, 2011 (the "Closing Date ForecastsCLOSING DATE FORECASTS"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(hg) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Wachovia Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been (or will be with the proceeds of the Loans on the Closing Date) paid in full.
(h) There has been no change, occurrence or development since December 31, 2003 that (A) either individually or in the aggregate, could reasonably be expected to (1) have a material adverse effect on the business, liabilities, operations or financial position of the Restricted Companies, taken as a whole, other than any such effect to the extent it results from (x) changes in general economic, market or political conditions or any acts of war or terrorism, (y) matters generally affecting any of the industries in which the Restricted Companies operate and (z) matters resulting from the execution, delivery, performance or announcement of the Transaction, in each case unless disproportionately negatively affecting the Restricted Companies, (2) materially and adversely affect the ability of any Loan Party to perform its obligations under the Loan Documents or (3) materially and adversely affect the rights and remedies of the Lenders under the Loan Documents or (B) adversely affects any other aspect of the Transaction in any material respect.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Financial Inc /De/)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent either prior to or substantially contemporaneously with such initial Credit Extension:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, in each Guarantycase sufficient in number for distribution to the Administrative Agent, each Lender, and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a security and pledge agreement, in substantially the form of Exhibit F (together with each other security agreement and supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), and the Inter-Company Assignment, in each case duly executed by each applicable Loan Party theretoParty, together with:
(A) certificates the certificates, if any, representing the Pledged Equity referred to therein that is represented by a certificate (within the meaning of Section 8-102(4) of the UCC) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,;
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared Financing Statements in form appropriate for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created under the Security AgreementCollateral Documents, covering the Collateral described in the Security Agreement,Collateral Documents;
(C) evidence that of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Collateral Documents that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been takenthereby;
(D) the deposit account control agreements and the securities account control agreements, completed or otherwise provided for if any, in a manner reasonably satisfactory each case as referred to in the Security Agreement and duly executed by the appropriate parties; and
(E) evidence that all other actions, recordings, and filings that the Administrative Agent,Agent may deem necessary or desirable in order to create a perfected first-priority Lien (subject to Liens permitted by Section 7.01) in the Collateral has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) lien searches in the Intellectual Property Security Agreement, duly executed by name of each Loan Party theretoParty, together with evidence that all action that the and any other name(s) as Administrative Agent in its reasonable judgment may deem reasonably necessary appropriate in order to perfect such Loan Party’s jurisdiction of formation and protect the each state or jurisdiction where such Loan Party maintains an office or has real property, showing no financing statements or other Lien instruments of record except for Liens created under or permitted by the Intellectual Property Security Agreement has been takenLoan Documents or Liens being released on the Closing Date;
(v) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organizationformation and each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) an certificates attesting to the Solvency of each Loan Party before and after giving effect to this Agreement, from its chief financial officer substantially in the form of Exhibit I;
(viii) a favorable opinion of Weil, Gotshal Winston & ▇S▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each the Administrative Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event, occurrence event or state circumstance since the date of facts since February 29, 2004, the Audited Financial Statements that has had or could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (1C) have a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies pro forma calculation of the Lenders under Advisory Leverage Ratio and the Loan DocumentsConsolidated Leverage Ratio as of the Closing Date;
(ixxi) a certificate attesting to the Solvency duly completed Compliance Certificate prepared on a pro forma basis as of the Loan Parties (taken as last day of the fiscal quarter of the Borrower ended September 30, 2017, signed by a whole) after giving effect to Responsible Officer of the Transaction, from the chief financial officer of Parent and the Borrower;
(xxii) evidence that all insurance required fully executed originals of the Inter-Company Debt Documents together with an allonge endorsing the Inter-Company Note to be maintained pursuant to Administrative Agent;
(xiii) estoppel agreements dated the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insureddate hereof, as appropriate, under each insurance policy executed by AHT with respect to casualty the Hospitality Trust Advisory Agreement and liability insurance as Braemar with respect to which the Braemar Advisory Agreement, each for the benefit of Administrative Agent shall have requested and form and substance reasonably acceptable to be so named;Administrative Agent; and
(xixiv) certified copies of the Purchase Agreement and all material agreementssuch other assurances, instruments and other documents delivered in connection therewith certificates, documents, consents or opinions as the Administrative Agent shall or the Required Lenders may reasonably request; and
(xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extensionrequire.
(bi) All fees and expenses required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid in full in cashand (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) (i) All material consents The Administrative Agent and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) each Lender shall have been obtained, and (ii) received all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations documentation and other regulatory bodies specified information that the Administrative Agent and such Lender require in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Purchase Agreement Act (as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Loan Parties or the Transaction or that could seek or threaten any of the foregoinghereafter defined).
(d) The Arrangers Unless waived by the Administrative Agent, the Borrower shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions paid all fees, charges and disbursements of Section 6.18.
(e) The Arrangers shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed by the Arrangers prior to July 9, 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), and after giving effect to the Transaction, the corporate and capital structure and equity ownership of Holdings and its Subsidiaries shall not differ from what is set forth in the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.
(f) Evidence reasonably satisfactory counsel to the Administrative Agent that (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or simultaneously with on the initial Credit Extensions Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Borrower closing proceedings (provided that such estimate shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale not thereafter preclude a final settling of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of accounts between the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (Administrative Agent). Without limiting the "Historical Financial Statements"); (ii) forecasts prepared by management generality of the Borrowerprovisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each in form reasonably Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated and all amounts outstanding thereunder shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ashford Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (as applicable)or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement and each GuarantyAgreement;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) the a Security Agreement, duly executed by each Loan Party theretoParty, together with:
(A) certificates representing the Pledged Equity Interests referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in of all jurisdictions that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security AgreementAgreement (to the extent intended by the terms thereof to be created thereby), covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such financing statements,
(D) subject to Section 6.20, evidence that each Loan Party has taken or caused to be taken all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agentthereby,
(ivE) the Intellectual Property Security Agreementsubject to Section 6.21, duly executed by each Loan Party thereto, together with evidence that all other action that the Administrative Agent in its reasonable judgment may reasonably deem reasonably necessary or desirable in order to perfect and protect the Liens first priority liens and security interests created under the Security Agreement (to the extent intended by the terms thereof to be created thereby) has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords' and bailees' waiver and consent agreements);
(iv) an intellectual property security agreement, in substantially the form of Exhibit I hereto (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan Party, together with evidence that all actions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement (to the extent intended to be created thereby) has been taken, including without limitation, filing and recording of such Intellectual Property Security Agreement with the appropriate authorities;
(v) a duly executed pledge agreement or equivalent document, together with any other documents necessary to create and perfect a security interest over up to 65% of the Equity Interest issued by any first-tier Foreign Subsidiary of the Borrowers that is a CFC, legal opinions of applicable foreign counsel in form and substance reasonably satisfactory to the Administrative Agent and evidence that all steps necessary to accomplish such creation and perfection under the law of the jurisdiction of organization of the relevant Foreign Subsidiary have been taken and remain in full force and effect;
(vi) such certificates of resolutions, manager consent resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Guarantors is validly existing, in good standing and qualified to engage in business in its each jurisdiction where the ownership, lease or operation of organizationproperties or the conduct of such Loan Party's business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiviii) an a favorable opinion of Weil, Gotshal & (x) ▇▇▇▇▇▇▇ LLP▇▇▇▇ & ▇▇▇▇▇ LLP and (y) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC, Michigan counsel to the Loan Parties, addressed to each Agent and each Lender and each in form and substance reasonably satisfactory Lender, as to the Administrative Agentmatters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiiix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of Holdings and ATT certifying (A) that the Borrower certifying conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no changeevent or circumstance since (i) in the case of ATT, effectthe date of the Audited Financial Statements and (ii) in the case of Holdings, event, occurrence or state the date of facts since February 29, 2004its formation, that has had or could be reasonably be expected to (1) have have, either individually or in the aggregate, a material adverse effect on the business, operations, assets, liabilities (actual or contingent), results of operations or condition (financial or otherwise), of Holdings and its Subsidiaries (including the Target and its Subsidiaries), taken as a whole, or (2) adversely affect the rights and remedies of the Lenders under the Loan DocumentsMaterial Adverse Effect;
(ixxi) a certificate certificates and letters attesting to the Solvency of ATT individually and the Loan Parties (Parties, taken as a wholewhole (other than inactive Subsidiaries of the Borrowers) before and after giving effect to the Transactiontransactions contemplated by this Agreement, from the chief financial officer of the Borrowerits Chief Financial Officer;
(xxii) [intentionally omitted];
(xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that together with endorsements naming the Administrative Agent has been named as loss payee or additional insuredAgent, on behalf of the Lenders, as appropriatean additional insured or loss payee, as the case may be, in each case, under each all such insurance policy with respect to casualty and liability insurance policies, as to which the Administrative Agent shall have requested to be so namedapplicable;
(xixiv) certified copies of each of the Purchase Agreement and Related Documents, duly executed by the parties thereto together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and;
(xiixv) a Committed Loan Notice or Letter of Request for Credit ApplicationExtension, as applicable, relating to the initial Credit Extension.; and
(bxvi) All fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cashpaid.
(c) (ib) All requisite material consents governmental authorizations and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including without limitation the granting of the Liens on the Collateral) shall have been obtained, and (ii) all material governmental, shareholder and material third party consents and approvals necessary in connection with the Transaction Acquisition and entering into the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect; all applicable waiting periods (including, without limitation, the expiration or termination of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1975, and the approval or consent of any applicable exchanges, Regulatory Supervising Organizations and other regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) for governmental authorizations in connection with the Transaction Acquisition and entering into the Loan Documents shall have expired without any action being taken by any authority Governmental Authority, and no Law shall be applicable in the judgment of the Administrative Agent, in each case that could restrainrestrains, prevent prevents or impose any material imposes materially adverse conditions on any upon the Acquisition, entering into the Loan Documents or the rights of the Loan Parties or the Transaction their Subsidiaries freely to transfer or that could seek otherwise dispose of, or threaten to create any Lien on, any properties now owned or hereafter acquired by any of them.
(c) The Acquisition shall have been consummated in accordance with the foregoingterms of the Merger Agreement, without any amendment, waiver or other material change not consented to by the Arranger of any term, provision or condition set forth therein, (other than waivers, amendments or other material changes that are reasonably determined by the Arranger not to be materially adverse to the Lenders), and in compliance with all applicable requirements of Law.
(d) The Arrangers shall have received evidence reasonably satisfactory to them that the Company shall comply with the provisions of Section 6.18[intentionally omitted].
(e) The Arrangers Arranger shall be reasonably satisfied with the Purchase Documentation (it being understood and agreed that the Purchase Documentation (i) reviewed any changes to the pro forma capital and ownership structure (including all Equity Interests and debt financings) and the shareholder arrangements of Holdings and its Subsidiaries, including, without limitation, the Organization Documents, since June 1, 2004 (other than changes that are reasonably determined by the Arrangers prior Arranger to July 9be not materially adverse to the Lenders), 2004 and (ii) which is substantially consistent with the Purchase Agreement is, in each case, satisfactory to the Arrangers), all material terms and after giving effect to the Transaction, the corporate and capital structure and equity ownership conditions of all material liabilities of Holdings and its Subsidiaries shall not differ from what is set forth in to remain outstanding following the summary of terms attached as Annex II to the Commitment Letter dated as of June 8, 2004 among the Borrower, the Arrangers and the lenders party thereto or in the Purchase Agreement in any material respect in a manner that is adverse to the interests of the Lenders, in each case without the approval of the Arrangers.Closing Date
(f) Evidence reasonably satisfactory to the Administrative Agent that prior to or simultaneously with the initial Credit Extensions the Borrower shall have received at least $600,000,000 in gross cash proceeds from the issuance and sale of the Senior Subordinated Notes.
(g) The Arrangers and the Lenders shall have received: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended February 28, 2003 and February 29, 2004 (the "Historical Financial Statements"); (ii) forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on February 28, 2005 through the fiscal year ending on February 28, 2011 (the "Closing Date Forecasts"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared; and (iii) a certificate from a Responsible Officer of Holdings and the Borrower to the effect that the Closing Date Forecasts were prepared in good faith upon reasonable assumptions at the time of preparation, it being understood that actual results may vary from such forecasts and that such variations may be material.
(h) The Arrangers shall have received evidence reasonably satisfactory to them that the Revolving Credit Agreement dated as of June 23, 2003 among Refco Group Ltd., LLC, as borrower, JPMorgan Chase Bank, as Administrative Agent shall have been terminated received a Borrowing Base Certificate prepared as of March 31, 2006 and upon giving effect to the initial funding of Revolving Credit Loans and initial issuance of Letters of Credit, and the payment by Borrowers of all amounts outstanding fees and expenses incurred in connection herewith and the Acquisition, as well as any payables stretched beyond their customary payment practices, Availability shall be at least $12,500,000. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid in fullreceived notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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